Summary of NLRB Decisions for Week of September 17-21, 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
(The first two decisions were issued on September 13, but the summaries were not available until this week’s report.)
Bradford Printing & Finishing, LLC (01-CA-046524, et al.; 358 NLRB No. 131) Bradford, RI, September 13, 2012.
The Acting General Counsel sought a default judgment in this case pursuant to the terms of an informal settlement agreement. According to the uncontroverted allegations in the motion for default judgment, the respondent failed to comply with the terms of the settlement agreement with respect to the timely payment of backpay in scheduled installments. Consequently, pursuant to the noncompliance provisions of the settlement agreement, the Board found that all of the allegations in the reissued consolidated complaint were true.
Charge filed by New England Joint Board, UNITE HERE. Chairman Pearce and Members Griffin and Block participated.
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JC Electric, LLC and its ego JC Electrical Enterprises, LLC (09-CA076253; 358 NLRB No. 128) Vanceburg, KY, September 13, 2012.
The Acting General Counsel sought a default judgment in this case on the ground that the respondents failed to file an answer to the complaint. Having found that the respondents had engaged in certain unfair labor practices by withdrawing recognition from the union, repudiating the provisions of the 2012-2014 collective-bargaining agreement, and failing to continue in effect all the terms and conditions of the 2012-2014 collective-bargaining agreement, the Board ordered them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Charge filed by International Brotherhood of Electrical Workers, Local 575. Chairman Pearce and Members Griffin and Block participated.
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USC University Hospital (21-CA-039656, et al.; 358 NLRB No.132) Los Angeles, CA, September 17, 2012.
The Board found that the employer unlawfully eliminated the bonus and mandatory on-call schedule for a section of nurses without bargaining with the union. The Board rejected the argument of the employer that it was permitted to change the schedule based on the collective- bargaining agreement, because the employer did not follow all of the requirements provided by the provision to change the schedule. The Board also found that the employer did not unlawfully suspend an employee, who was an active union supporter, because the employee’s records showed excessive absences and tardiness. The Board clarified that, even if the employer’s unlawful conduct in a separate incident was sufficient to establish antiunion animus, the employer proved that it would have suspended the employee regardless of his union activity. The Board also found that the employer did not have a 7-minute grace period in its tardiness policy.
Charges filed by National Union of Healthcare Workers. Administrative Law Judge Gregory Z. Meyerson issued his decision on April 11, 2012. Chairman Pearce and Members Hayes and Griffin participated.
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Temecula Mechanical, Inc. (21-CA-039667, et al.; 358 NLRB No. 137) Temecula, CA, September 17, 2012.
The Board affirmed the administrative law judge’s findings that the respondent violated the Act by: (1) interrogating an employee regarding the union activities of other employees; (2) telling an employee that he was being laid off because of his union activities; (3) creating an impression of surveillance of employees’ union activities by telling the same employee that it knew that he was not the employee working with the union, but rather another named employee. The Board also affirmed the judge’s findings that the respondent did not violate the Act by laying off the second employee but did violate the Act by not recalling him. Finally, the Board affirmed the judge’s conclusions that the issue of reinstatement and backpay should be left to compliance and that an order by the Associate Chief Administrative Law Judge had disposed of an informal settlement.
Charges filed by Plumbers and Pipefitters, Local 398, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. Administrative Law Judge John J. McCarrick issued is decision on May 17, 2012. Members Hayes, Griffin, and Block participated.
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CC 1 Limited Partnership d/b/a Coca-Cola Puerto Rico Bottlers (24 CA‑011018, et al.; 358 NLRB No. 129) Cayey, PR, September 18, 2012.
The Board found that the employer violated the Act by terminating shop stewards and employees for engaging in protected strikes. The Board rejected the argument that the employees engaged in an unlawful wildcat strike. The Board also found that the employer violated the Act by requiring employees to sign overbroad last-chance agreements and by terminating employees for violating those agreements. Finally, the Board found that the union’s discipline of members violated the Act because the discipline affected the members’ seniority.
Charges filed by individuals. Administrative Law Judge Bruce D. Rosenstein issued his decision on April 16, 2010. Chairman Pearce and Members Griffin and Block participated.
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Fresenius USA Manufacturing, Inc. (02-CA-039518; 358 NLRB No. 138) Chester, NY, September 19, 2012.
In this case, a pro-union employee anonymously wrote offensive and possibly threatening statements on several union newsletters left in an employee breakroom in an attempt to encourage fellow employees to support the union in an upcoming decertification election. The Board unanimously found, in agreement with the administrative law judge, that the employer lawfully investigated the statements and questioned the employee. The Board also unanimously found, in agreement with the judge, that the employer unlawfully admonished the employee not to speak about the investigation with other employees. A Board majority, consisting of Members Griffin and Block, further found, in disagreement with the judge, that the employer unlawfully suspended and terminated the employee. The majority believed that the employee’s written statements did not lose the protection of the Act under either Atlantic Steel or a totality of the circumstances analysis. The majority also believed that the employee’s false denials of authorship during the investigation could not serve as a lawful justification for suspension and discharge because, under the circumstances, the employee could not be forced to disclose his protected conduct.
Dissenting in part, Member Hayes found that the written statements were so offensive that they lost the protection of the Act. He further found that an employee does not have a Section 7 right to lie during a lawful interrogation about alleged sexual harassment in order to conceal participation in union activity. However, inasmuch as he found that the employer lawfully discharged the employee for his written statements, Member Hayes believed that it was unnecessary to pass on whether the employee’s untruthful responses were a legitimate independent basis for his discharge.
Charges filed by International Brotherhood of Teamsters, Local 445. Administrative Law Judge Margaret G. Brakebusch issued her decision on August 19, 2010. Members Hayes, Griffin, and Block participated.
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Coastal Sunbelt Produce, Inc. (05-CA-036362, 358 NLRB No. 135) Savage, MD, September 20, 2012.
The Board adopted the administrative law judge’s findings that the respondent violated Section 8(a)(1) of the Act by interrogating an employee about her and her husband’s support for the union, and violated Section 8(a)(3) and (1) by subsequently terminating her because of her husband's union activities and because she refused management’s request that she ask her husband to cease and apologize for his union activities.
Charge filed by an individual. Administrative Law Judge Eric M. Fine issued his decision on February 17, 2012. Chairman Pearce and Members Hayes and Block participated
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Mid-West Telephone Service, Inc. (08-CA-038901, et al.; 358 NLRB No. 145) Girard, OH, September 21, 2012.
The Board unanimously adopted the administrative law judge’s findings that the respondent, a company that installs communications equipment, violated the Act when it discharged two employees. The Board found no need to rely on the judge’s application of the small plant doctrine to infer that the respondent knew of its employees’ protected conduct. Instead, the timing of the employees’ discharges and the foreman’s history of reporting employee issues to the vice president led to a reasonable inference that, when the foreman found out about the employees’ protected activity, he reported it to management. The Board majority, Members Griffin and Block, further found that the vice president’s comments to employees offering logistical support if they formed an in-house union unlawfully infringed on the employees’ right to choose their own representative. Member Hayes dissented on that issue, and would find that the vice president merely expressed his opinion and offered only informational aid, not substantive benefits. The Board also, in the absence of exceptions, adopted the judge’s findings that the respondent unlawfully threatened to discharge the two employees for their protected activities and that the respondent did not otherwise violate the Act.
Charges filed by individuals. Administrative Law Judge Mark Carissimi issued his decision on December 28, 2011. Members Hayes, Griffin, and Block participated.
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Henry Rodriguez, Sr., Henry Rodriguez, Jr., Monica Pritchett, and Christopher Pritchett, California General Partnership d/b/a Life’s Connections (32‑CA‑068654, et al.; 358 NLRB No. 139) Hollister and San Jose, CA, September 18, 2012.
The Acting General Counsel sought a default judgment in this case on the ground that the respondent failed to file an answer to the consolidated complaint. The consolidated complaint alleged that the respondent engaged in the following conduct: (1) at its Hollister, CA facility, threatened to terminate employees because they concertedly complained about a pay cut; (2) told employees not to tell each other how much they were paid or to discuss their terms and conditions of employment with each other; (3) told employees that their protected concerted activities, including discussion about their wages, constituted insubordination and a breach of confidentially; (4) threatened employees that their protected concerted activities, including discussion about their wages, constituted insubordination and would not be tolerated; (5) issued a written suspension notice to employees which cited their protected concerted activities as a reason for the issuance of the suspension and which prohibited employees from discussing work-related subjects with coworkers while they were on suspension; (6) at its San Jose, CA facility, told employees that they were being discharged because of their protected concerted activities and because the employees had spoken to each other about unionizing; (7) suspended employees because they engaged in protected concerted activities; (8) eliminated employees’ work hours because they formed, joined, or assisted a union and engaged in protected concerted activities; and (9) terminated two employees.
Charge filed by individuals. Chairman Pearce and Members Griffin and Block participated.
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AMJ Sheet Metal & HVAC, LLC (04-CA-083412; 358 NLRB No. 140) Freehold, NJ, September 18, 2012.
The Acting General Counsel sought a default judgment in this case on the ground that the respondent failed to file an answer to the complaint. The respondent had been discriminating in regard to the hire or tenure or terms or conditions of employment of its employees thereby discouraging membership in a labor organization in violation of the Act.
Charge filed by Sheet Metal Workers International Association, Local 19. Chairman Pearce and Members Griffin and Block participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
AmbuServe Ambulance (21-RC-081393) Gardena, CA, September 19, 2012. Having reviewed the record and in light of exceptions and opposition, the Board adopted the Regional Director’s findings and recommendations, and found that a certification of representative should be issued. Petitioner – National Emergency Medical Services Association/NAGE, Local 2. Chairman Pearce and Members Griffin and Block participated.
International Brotherhood of Teamsters, AFL-CIO (05-RC-078154) Washington, DC, September 19, 2012. Having reviewed the record and in light of employer’s exceptions and brief, the Board adopted the Regional Director’s findings and recommendations, and found that a certification of representative should be issued. Petitioner – Federation of Agents and International Representatives (FAIR). Chairman Pearce and Members Griffin and Block participated.
Lifesource (13-RC-074795) Rosemont, IL, September 19, 2012. Having reviewed the record and in light of exceptions and brief, the Board adopted the Regional Director’s findings and recommendations, and found that a certification of representative should be issued. Petitioner – Local 881, United Food and Commercial Workers. Chairman Pearce and Members Griffin and Block participated.
South Metro Human Services (18-RC-017754) Minneapolis, MN, September 19, 2012. Having reviewed the record and in light of exceptions and briefs, the Board adopted the Hearing Officer’s findings and recommendations only to the extent consistent with the decision and direction of second election. Petitioner – American Federation of State, County, and Municipal Employees Council 5. Chairman Pearce and Members Hayes and Griffin participated.
Golden Farm Brooklyn Inc. d/b/a Golden Farm Grocery (29-RC-077022) Brooklyn, NY, September 20, 2012. Having reviewed the record and no exceptions were filed, the Board adopted the Hearing Officer’s findings and recommendations, and found that a certification of representative should be issued. Petitioner – Local 338, Retail Wholesale, and Department Store Union, United Food and Commercial Workers.
C Cases
Peckham Vocational Industries, Inc. (07-CA-081429) Lansing, MI, September 18, 2012. Order denying respondent’s motion for partial summary judgment. Charge filed by United Peckham Employee Association. Chairman Pearce and Members Griffin and Block participated.
Dubin Paper Company (04-CA-079713) Philadelphia, PA, September 18, 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 Warehouse Employees, Local 169 a/w International Brotherhood of Teamsters.
Voith Industrial Services, Inc. (09-CA-075496, et al.) Louisville, KY, September 19, 2012. Order granting the Acting General Counsel’s request for special permission to appeal the rulings of the administrative law judge. Charges filed by General Drivers, Warehousemen & Helpers, Local 89, affiliated with International Brotherhood of Teamsters (The). Chairman Pearce and Members Griffin and Block participated.
NASAKY, Inc. d/b/a Yuba Skilled Nursing Center (20-CA-068854) Yuba City, CA, September 19, 2012. Order having no statement of exceptions filed, the Board adopted the findings and conclusions of the administrative law judge’s decision ordering the respondent to take the recommended action. Charge filed by Thekkek Health Services, Inc.
Rochester Gas & Electric Corporation (03-CA-081230) Rochester, NY, September 20, 2012. Order correcting issuance date of case. Charge filed by Local 36, International Brotherhood of Electrical Workers, AFL-CIO.
Land Air Express of New England, Inc. (22-CA-080259) Carlstadt, NJ, September 20, 2012. Order denying the employer’s petition to revoke subpoena duces tecum. Charge filed by an individual. Chairman Pearce and Members Griffin and Block participated.
Petermann, LTD (09-CA-062183, et al.) Lancaster, OH, September 20, 2012. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charges filed by Teamsters, Local 413, affiliated with The International Brotherhood of Teamsters.
Station Casinos, Inc., et al. (28-CA-023436, et al.) Las Vegas, NV, September 21, 2012. Order granting the joint motion of counsel for the Acting General Counsel, respondent, and charging party for revision of the Board’s decision and order issued in the case. Charges filed by Local Joint Executive Board of Las Vegas, Culinary Workers, Local 226 and Bartenders, Local 165.
Paragon Systems, Inc. (05-CA-070962) Woodlawn, MD, September 21, 2012. Order having no statement of exceptions filed, the Board adopted the findings and conclusions of the administrative law judge’s decision ordering the respondent to take the recommended action. Charge filed by United Union of Security Guards.
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Appellate Court Decision
Gimrock Construction, Inc., Board Case No. 12-CA-17385 (reported at 356 NLRB No. 83) (11th Circuit decided September 18, 2012)
In a published opinion, the Eleventh Circuit enforced the Board’s compliance order setting forth backpay owed to seven strikers Gimrock refused to reinstate after a 1995 economic strike. The Court, however, reversed the Board's holding requiring the employer to bargain with the union for at least 16 hours per week as beyond the scope of the Court's prior decision enforcing the original unfair labor practice findings.
Gimrock is a Florida heavy construction contractor whose employees selected union representation in 1995. Gimrock refused to bargain, and the employees went on a one-week economic strike. After the employees offered to return to work, the employer refused to reinstate them. The Board found that the refusal to reinstate violated the Act, and it ordered reinstatement with backpay. In a separate order, the Board found that the company's ongoing refusal to bargain also violated the Act, and ordered Gimrock to "[c]ease and desist from...[r]efusing to bargain in good faith with the union," and "[o]n request, [to] meet and bargain with [the union]." Ultimately, in 2006, the Eleventh Circuit enforced both Board orders.
The Region then instituted compliance proceedings and, after extended litigation over subpoena enforcement to obtain payroll records, it issued a compliance specification. The specification estimated backpay based on the little information Gimrock eventually turned over, extrapolating average earnings from later backpay periods to adduce earlier ones about which Gimrock provided no information. Because Gimrock still was not bargaining 11 years after its employees' selection of union representation, the compliance specification demanded that Gimrock bargain at least 16 hours per week to fulfill the earlier order's command that Gimrock meet and bargain with the union on request. After a hearing before an administrative law judge, the Board adopted the compliance specification, requiring backpay of $354,000 and the 16-hour-per-week bargaining requirement.
The Eleventh Circuit issued a split decision. First, it held that "[t]he evidence before the ALJ fully supported the ALJ's recommendation--that the Board award the strikers the sum total stated in the compliance specification--and therefore the Board's adoption of the recommendation. "It also rejected Gimrock's procedural challenges to the conduct of the hearing below. Yet, the Court concluded that the 16-hour weekly bargaining requirement was inconsistent with the order it enforced in the unfair labor practice case. As the Court explained, "when it became apparent that Gimrock was not going to comply with [the Court's] injunctive order requiring [Gimrock] to meet with the union and bargain in good faith, the Board could have petitioned this court to issue an order requiring the company to show cause why it should not be held in civil contempt," instead of attempting to remedy the allegedly contumacious conduct itself. Without having moved the Court to find Gimrock in contempt, the Board "has eschewed the traditional means of obtaining compliance with an injunctive order," and the Court declined to enforce the Board's alternate approach.
The Court’s published opinion is available here
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Decisions of Administrative Law Judges
Communications Workers of America and Communications Workers of America, Local 4309 (AT&T Teleholdings, Inc. d/b/a AT&T Midwest and the Ohio Bell Telephone Company) (08‑CB‑010487; JD‑49‑12) Cleveland, OH. Charge filed by an individual. Administrative Law Judge John T. Clark issued his decision on September 17, 2012.
American Reclamation, Inc. (31-CA-067258, et al.; JD(SF)-46-12) Los Angeles, CA. Charges filed by Package and General Utility Drivers, Teamsters, Local 396. Administrative Law Judge William G. Kocol issued his decision on September 17, 2012.
Hartman and Tyner, Inc., d/b/a Mardi Gras Casino and Hollywood Concessions, Inc. (12‑CA‑072234, et al.; JD(ATL‑21‑12) Hallandale Beach, FL. Charges filed by UNITE HERE! Local 355, affiliated with UNITE HERE! Administrative Law Judge George Carson II issued his decision on September 18, 2012.
New York Party Shuttle, LLC (02-CA-073340; JD(NY)-29-12) Bronx, NY. Charge filed by an individual. Administrative Law Judge Raymond P. Green issued his decision on September 19, 2012.
Kawa Sushi, Inc. a/b/a Kawa Sushi 8 Avenue, Inc. d/b/a Kawa Sushi Restaurant (02‑CA‑039736; JD(ATL)‑23‑12) New York, NY. Charge filed by 318 Restaurant Workers Union. Administrative Law Judge Michael A. Marcionese issued his decision on September 19, 2012.
Venue Trading Co. d/b/a Trade Show Supply (12-CA-074022; JD(ATL)-24-12) Orlando, FL. Charge filed by International Alliance of Theatrical Stage Employees, Local 835, AFL-CIO. Administrative Law Judge Robert A. Ringler issued his decision on September 20, 2012.
Silgan Plastics Corporation (25-CA-031870, et al.; JD-50-12) Seymour, IN. Charges filed by United Steelworkers, AFL-CIO-CLC, Local 822, a/w United Steel Workers, AFL-CIO Administrative Law Judge Paul Bogas issued his decision on September 20, 2012.
Echostar Technologies, LLC (27-CA-066726; JD(SF)-44-12) Englewood, CO. Charge filed by an individual. Administrative Law Judge Clifford H. Anderson issued his decision on September 20, 2012.
Clarke Manufacturing, Inc. (30-CA-072046; JD-52-12) Milwaukee, WI. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Administrative Law Judge Mark Carissimi issued his decision on September 21, 2012.
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