Summary of NLRB Decisions for Week of September 3-7, 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
RSN & Associates, Inc. (20-CA-035612, et al.; 358 NLRB No. 107) Sacramento, CA, August 31, 2012.
The Board unanimously modified the administrative law judge’s remedy, order, and notice in response to the General Counsel’s limited exceptions, which were to only the language, not the substance, of the order and notice. The judge found that the respondent violated the Act when it unilaterally, and without notice to or bargaining with the union, (a) ceased to remit payments to the employees’ pension and welfare plans, (b) informed the pension and welfare plans that it would no longer contribute to the plans, (c) laid off an employee out of seniority order, (d) ceased its operations and terminated the employment of all of its employees without paying them the cash value of their sick time and vacation time as called for in the collective-bargaining agreement, and (e) failed to furnish the union relevant information it requested. The Board amended the remedy, order, and notice to include language requiring the respondent to (a) condition its reinstatement of the employee on the respondent resuming operations, and (b) notify the employee that his layoff would not be used against him, (c) provide the union with the information it requested, (d) mail the notice to employees, and (e) bargain with the union over the effects of the closure of its business.
Charges were filed by UNITE HERE! Local 49, UNITE HERE! AFL-CIO. Administrative Law Judge John J. McCarrick issued his decision on April 23, 2012. Chairman Pearce and Members Griffin and Block participated.
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McClain & Co., Inc. (22-CA-029792; 358 NLRB No. 118) Lyndhurst, NJ, August 31, 2012.
The Board found that the employer violated the Act by threatening employees with a loss of work for engaging in protected concerted activities by sending two emails stating that if employees complained about their scheduling assignments, they would not work. Although the employees had not complained about the assignments as a group, they had frequently discussed their concerns about the assignments with each other and had individually raised these concerns with various management officials. One employee had, by phone call, informed the respondent’s owner that this was a group concern. The Board additionally found that the threats would have violated the Act regardless of whether the employees had already engaged in protected concerted activity because the emails threatened adverse action if the employees engaged in such activity in the future. Member Hayes found it unnecessary to rely on this additional rationale. The Board also found that the employer violated the Act by discharging three employees for attending a union meeting, as the reasons the employer gave for the discharges were pretextual. Finally, the Board found that the employer violated by Act by interrogating an employee and creating the impression that the employees’ union activities were under surveillance. Member Hayes dissented regarding the impression of surveillance violation.
Charge filed by an individual. Administrative Law Judge Eleanor MacDonald issued her decision on October 17, 2011. Chairman Pearce and Members Hayes and Block participated.
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Kerry, Inc. (07-CA-052965, et al.; 358 NLRB No. 113) Kentwood, MI, August 31, 2012.
The administrative law judge in this refusal-to-bargain case addressed multiple issues raised by the complaint, all stemming from the respondent’s unilateral change from an 8-hour, 3-shift daily work schedule to, essentially, a 12-hour, two-shift schedule. Although concluding that the schedule change was lawful under the parties’ contract, the judge found that the respondent unlawfully changed contractual provisions concerning work breaks and shift-premium pay. He dismissed the remaining complaint allegations.
Charges filed by Local 70, Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, AFL-CIO. Administrative Law Judge Keltner W. Locke issued his decision on September 27, 2011. Members Hayes, Griffin, and Block participated.
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OS Transport, LLC and HCA Management, Inc. (32-CA-025100, et al.; 358 NLRB No. 117) San Martin, CA, August 31, 2012.
Following the respondent’s coercing of its drivers to individually incorporate and sign sham independent contractor agreements, the drivers engaged in protected concerted activity by presenting the respondent with a group letter of protest, and engaging in an organizing campaign leading to the filing of a representation petition. The administrative law judge found that the respondent violated the Act by making numerous threats to terminate employees and close the business, by terminating two drivers, and by reducing the work hours of 10 other drivers. The Board adopted the judge’s findings, except the reduction in assignments for two of the ten drivers.
The Board ordered that its remedial notice be read aloud to employees in the presence of the respondent’s owner-and that the respondent, upon request of the union, supply the union with names and addresses of unit employees. The Board explained that these special remedies were warranted in light of the respondent’s swift response by its most senior officials to the drivers’ protected activity by a series of escalating unfair labor practices; the widespread impact of the unfair labor practices among the respondent’s relatively small complement of drivers; and that the respondent had sought to strip them of their employee status and concomitant rights under the Act via the sham independent contractor agreements. Member Hayes found that the unfair labor practices were not sufficiently numerous and severe, however, to warrant imposition of special remedies.
Prior to the issuance of the decision by the judge, the Board had sought and obtained an injunction against the respondent, under Section 10(j) of the Act, by the Federal District Court for the Northern District of California.
Charges filed by Teamsters, Local 350, International Brotherhood of Teamsters, Change to Win. Administrative Law Judge Gerald M. Etchingham issued his decision on August 15, 2011. Chairman Pearce and Members Hayes and Griffin participated.
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DTM Corporation (16 -CA- 027094; 358 NLRB 112) Fort Worth, TX, August 31, 2012.
The Board reversed the administrative law judge's finding that the no-strike clause in the respondent's collective-bargaining agreement with the union violated the Act. The judge found that the rule “bans and/or prohibits the distribution of literature (leaflets and handbills) without limitation.” The Board, in reversing the judge's finding, stated that the no-strike clause, "[a]s part of its prohibition of strikes… prohibits 'leafleting, informational picketing or other work action that has the purpose or effect of slowing down or interfering with work." The Board found that, in context, the most reasonable construction of that language is that "the only leafleting, informational picketing, or other work action prohibited" is that with the "purpose or effect of slowing down or interfering with work."
Charge filed by Police, Fire Professionals of America, Local 48. Administrative Law Judge William N. Cates issued his decision on June 30, 2010. Members Hayes, Griffin, and Block participated.
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CL Frank Management, LLC, et al. (20-CA-035123, et al.; 358 NLRB No. 111) San Francisco, CA, August 31, 2012.
An unanimous panel of the Board adopted the administrative law judge’s findings that the respondents, which manage three boutique-style hotels in San Francisco, violated the Act by: (1) issuing written warnings to six room cleaners for concertedly ceasing work 30 minutes before the end of their shifts, having cleaned two fewer rooms than they were assigned to clean; (2) prohibiting employees from wearing union insignia; (3) photographing employees while they engaged in protected concerted activities; (4) unilaterally extending the probationary period of all “front-of-the-house” employees by 45 days; and (5) issuing an employee oral and written warnings and then discharging him.
Charges filed by Unite HERE! Local 2. Administrative Law Judge William L. Schmidt issued his decision on July 6, 2011. Chairman Pearce and Members Hayes and Griffin participated.
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Dixie Electric Membership Corporation (15-CA-019954, et al.; 358 NLRB No. 120) Baton Rouge, LA, August 31, 2012.
The Board in this decision and order found that Dixie Electric acted unlawfully by removing the chief system operator (CSO) and the system operator (SO) classifications from the bargaining unit, and transferring the CSO and SO classifications from the bargaining unit. The Board also found that International Brotherhood of Electrical Workers, Local Union 767, did not waive its right to bargain with the respondent about the changes in the CSO and SO classifications. The Board further found that Dixie Electric’s unit clarification petition, alleging that the CSO and SO classifications were supervisory and/or managerial positions, was untimely. Member Hayes agreed that the respondent acted unlawfully by altering the scope of the bargaining unit when it eliminated the CSO and SO classifications but he found it unnecessary to pass on the alternative finding that Dixie Electric acted unlawfully by unilaterally transferring unit work from the bargaining unit.
Charges filed by International Brotherhood of Electrical Workers, Local 767. Administrative Law Judge Robert A. Ringler issued his decision on January 24, 2012. Members Hayes, Griffin and Block participated.
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Big Ridge, Inc. (14-CA-030379, et al.; 358 NLRB No. 114) Equality, IL, August 31, 2012.
The Board found that the employer violated the Act by (1) unlawfully discharging an employee because of his union support and activities; (2) overruled all of the employer’s election objections; and (3) issued the union a certification of representative. Further, in the absence of exceptions, the Board affirmed the judge’s findings and dismissals—as applicable—of various alleged violations of the Act. The violations found include, among others, threats of mine closure and implied promises of benefits. The Board ordered the employer to (1) cease and desist from its unlawful activities; (2) offer the discharged employee full reinstatement; (3) make the discharged employee whole for any loss of earnings and benefits resulting from the discrimination against him; (4) expunge from its files any reference to the discharged employee’s unlawful termination and notify him in writing that it had done so; and (5) post a notice to employees. The Board rejected the union’s request for a Gissel bargaining order, determining that it was unnecessary to pass on this requested remedy given the interim relief being provided by the Federal District Court’s Section 10(j) order, the forthcoming certification of the union, and the Acting General Counsel’s failure to except to the judge’s denial of a Gissel order. While acknowledging its authority to issue a Gissel order concurrently with a certification of representative, the Board found that traditional remedies are presently sufficient to redress the effects of the employer’s unfair labor practices. (The Board denied as moot the union’s May 2, 2012, motion for expedited processing.)
Charges filed by the United Mine Workers of America. Administrative Law Judge Jeffrey D. Wedekind issued his decision on December 1, 2011. Members Hayes, Griffin, and Block participated.
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International Union of Operating Engineers, Local 14-14B (Skanska USA) (02-CB-063648; 358 NLRB No. 115) Whitestone, NY, August 31, 2012.
The Board adopted the administrative law judge’s finding that the union violated the Act by causing the employer, Skanska USA, to remove an employee from his employment because he was not a member of the union. The employee was expelled from the union in 2011 because of the employee’s criminal corruption conviction several years earlier. On the same day, the union removed the employee from the jobsite. The Board emphasized that it does not oppose unions removing members and employees from jobsites for corruption or other unlawful activities, but in this case, the facts demonstrated that the union unlawfully removed the employee for his lack of union membership and not because of his conviction.
Charges filed by an individual. Administrative Law Judge Steven Davis issued his decision on March 20, 2012. Chairman Pearce and Members Hayes and Block participated.
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Costco Wholesale Corporation (34-CA-12421; 358 NLRB No. 106) Milford, CT, September 7, 2012.
The Board adopted the administrative law judge’s findings that the respondent violated the Act by maintaining rules prohibiting employees from: (a) “unauthorized posting, distribution, removal or alteration of any material on company property”; (b) discussing private employee matters including various terms and conditions of employment; (c) sharing sensitive information such as payroll data; and (d) sharing “confidential” information such as employees’ names, addresses, telephone numbers, and email addresses. The Board also adopted the judge’s dismissal of the allegation that the respondent violated of the Act by maintaining a rule requiring employees to use “appropriate business decorum” when communicating with others.
The Board reversed two of the judge’s findings. First, the Board found that the respondent violated Section 8(a)(1) by maintaining a rule prohibiting employees from electronically posting statements that “damage the company . . . or damage any person’s reputation.” Second, it found that the respondent did not violate Section 8(a)(1) by maintaining a rule prohibiting employees from “[l]eaving company premises during working shift without permission of management.” Chairman Pearce dissented from the Board’s dismissal of this allegation.
Charge filed by United Food and Commercial Workers Union, Local 371. Administrative Law Judge Steven Fish issued his decision on August 11, 2010. Chairman Pearce and Members Griffin and Block participated.
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NIPCAM Services Delmarva, LLC (11-CA-061485, et al.; 358 NLRB No. 110) Watkinsville, GA, August 31, 2012.
The Acting General Counsel sought a default judgment in this case on the ground that the respondent failed to file a sufficient answer to the complaint. The Board found that the employer violated the Act by interrogating employees about their protected concerted activities, by threatening employees with discharge for engaging in protected concerted activities, and by discharging four employees for engaging in protected concerted activities.
Charges filed by individuals. Members Hayes, Griffin, and Block participated.
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Amalgamated Transit Union, Local 1498, AFL-CIO (18-CB-080309; 358 NLRB No. 121) Independence, MO, August 31, 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 Board found that the respondent violated the Act by (1) failing to inform employees whom it sought to obligate to pay dues and fees under a union-security clause of their right to be and remain non-members, and of the right of non-members to object to paying for union activities and germane to the respondent’s duties as bargaining agent, and to obtain a reduction in dues and fees for such activities; (2) failing to recognize and give effect to employees’ resignations from union membership in a timely fashion; and (3) restraining or coercing employees in the exercise of the rights guaranteed them by the Act.
Charge filed by an individual. Chairman Pearce and Members Hayes and Block participated.
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Stagetech Production, LLC (11-CA-022813, 11-CA-023147; 358 NLRB No. 116) Greenville, SC, August 31, 2012.
The Acting General Counsel sought default judgment in case 11-CA-022813 pursuant to the terms of an informal settlement agreement, and in Case 11-CA-023147 on the ground that the respondent withdrew its answers to the consolidated complaint and amendment to the consolidated complaint. The Board found that the respondent violated the Act by (1) threatening employees that it would be futile for them to form or join a union; (2) giving employees the impression that it was monitoring their union activities; (3) promising increased wages to employees if they withdrew their support for the union; (4) making threats of a loss of work to employees because they engaged in union activities; (5) telling employees that its customers would not allow unionized employees to work their events; (6) asking employees about their union activities; (7) establishing and maintaining a discriminatory hiring list/system; (8) failing and refusing to hire employees because they engaged in, joined, or assisted the union, and engaged in concerted activities for the purpose of collective bargaining or other mutual aid and protection, and in order to discourage other employees from engaging in such concerted activities for the purpose of collective bargaining or other mutual aid and protection; (9) issuing discipline to employees because they engaged in, joined, or assisted the union, and engaged in concerted activities for the purpose of collective bargaining or other mutual aid and protection, and to discourage other employees from engaging in such concerted activities for the purpose of collective bargaining or other mutual aid and protection. (10) failing or refusing to call or return employees for work because they engaged in, joined, or assisted the union, and engaged in concerted activities for the purpose of collective bargaining or other mutual aid and protection, and in order to discourage other employees from engaging in such concerted activities for the purpose of collective bargaining or other mutual aid and protection; (11) failing or refusing to call or return employees for work because they filed charges or gave testimony under the Act, or because of the filing and settlement of this case; and (12) interfering and restraining or coercing employees in the exercise of the rights guaranteed them by the Act.
Charges filed by an individual. Chairman Pearce and Members Hayes and Block participated.
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Presidential Maintenance, LLC (05 -CA- 036428; 358 NLRB 119) Richmond, VA, August 31, 2012.
The Board granted default judgment on the ground that the Respondent failed to file an adequate answer to the compliance specification. The Board found that the respondent violated the Act and ordered it to make whole an employee by paying him backpay and expenses, plus interest accrued to the date of payment at the rate prescribed, plus respondent’s share of FICA contributions, and minus all tax withholdings required by Federal and State laws.
Charge filed by an individual. Members Hayes, Griffin, and Block participated.
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Quantum Hotels, LLC, Metropolitan Lodging, LLC, Wick Road Hotel Management, LLC, alter egos d/b/a Metropolitan Hotel, Romulus (The) (07-CA-065304; 358 NLRB No. 122) Romulus, MI, September 7, 2012.
The Acting General Counsel sought a default judgment in this case pursuant to the terms of an informal bilateral 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 by failing to furnish the union with requested information, failing to remit the agreed-upon backpay, and failing to post or mail the required notices to employees. Consequently, pursuant to the noncompliance provisions of the settlement agreement, the Board found that all of the allegations in the reissued amended complaint were true.
Charge filed by Local 24, UNITE HERE!, AFL-CIO. Chairman Pearce and Members Hayes and Block participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Mission Area Health Associates d/b/a Mission Neighborhood Health Center (20‑RC‑085529) San Francisco, CA, September 4, 2012. Order denying the employer’s request for review of the Regional Director’s decision and direction of election. Petitioner – National Union of Healthcare Workers. Chairman Pearce and Members Griffin and Block participated.
Ken-Tron Manufacturing (25-UD-085770) Owensboro, KY, September 5, 2012. Order denying employer’s request for review of the Acting Regional Director’s decision and direction of election. Petitioner – an individual. Chairman Pearce and Members Griffin and Block participated.
106-20 Shorefront Realty, LLC; 107-10 Shorefront Realty, LLC, and 1 Beach 105 Realty, LLC, a single employer (29‑RM‑063193) Far Rockway, NY, September 5, 2012. Decision and order remanding the proceeding to the Regional Director for further appropriate action. Petitioner – Local 32B-32J, Service Employees International Union.
Chi Center, Inc. (05-RC-080047) Silver Spring, MD, September 5, 2012. Decision and order remanding proceeding to the Regional Director for further appropriate action. Petitioner – Service Employees International Union (SEIU), Local 500.
Windsor Twin Palms Healthcare Center, LLC d/b/a Windsor Palms Care Center of Artesia (21‑RC‑084117) Artesia, CA, September 5, 2012. Order denying the employer’s request for review of the Regional Director’s decision and direction of election. Petitioner – SEIU-ULTCW, Service Employees International Union, United Long Term Care Workers. Chairman Pearce and Members Griffin and Block participated.
MR Transportation, Inc., d/b/a Marquis Ambulette (29-RC-066530) Brooklyn, NY, September 6, 2012. Order adopting in the absence of exceptions the Regional Director’s findings and recommendations, and finding that a certification of representative should be issued. Petitioner – Local 1181, Amalgamated Transit Union, AFL‑CIO.
C Cases
SEIU-United Healthcare Workers West (Lucile Packard Hospital at Stanford) (32‑CB‑078728) Palo Alto, CA, September 4, 2012. Order denying as untimely the union’s petition to revoke subpoena ad testificandum. Charge filed by an individual. Chairman Pearce and Members Hayes and Block participated.
SEIU-United Healthcare Workers West (Lucile Packard Hospital at Stanford) (32‑CB‑078728) Palo Alto, CA, September 4, 2012. Order denying the union’s petitions to revoke subpoena duces tecum and subpoena ad testificandum. Charge filed by an individual. Chairman Pearce and Members Hayes and Block participated.
Chickasaw Nation operating Winstar World Casino (17-CA-025031, et al.) Thackerville, OK, September 4, 2012. Corrected order approving stipulation, granting motion, and transferring proceeding to the Board. Charges filed by International Brotherhood of Teamsters, Local 886, affiliated with International Brotherhood of Teamsters
Wellington Industries, Inc. (07-CA-061568) Belleville, MI, September 4, 2012. Order denying respondent’s motion for reconsideration of the Board’s decision and order. Charge filed by Local 174, International Union, United Automobile Aerospace and Agricultural Implement Workers of America (UAW), FL‑CIO.
Excelsior Golden Living Center (18-CA-081449, et al.) Excelsior, MN, September 5, 2012. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s and respondent’s motions should not be granted. Charges filed by Service Employees International Union Healthcare Minnesota, Local 113.
Duncan & Son Lines (28-CA-079700) Buckeye, AZ, September 5, 2012. Order denying the employer’s petition to revoke portions of subpoena duces tecum. Charge filed by General Teamsters (Excluding Mailers) State of Arizona, Local 104. Chairman Pearce and Members Hayes and Block participated.
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Appellate Court Decision
HTH Corporation, Board Case No. 37-CA-7311 (reported at 356 NLRB No. 182) (9th Cir. decided September 6, 2012)
In a published opinion, the Court enforced the Board’s order finding that the employer, a Hawaii hotel, unlawfully engaged in bad faith bargaining, withdrew recognition, discharged seven union activists, and violated the Act in other respects. The Court’s opinion also affirmed a district court’s issuance of an injunction under Section 10(j) of the Act against the employer in a separate case.
After two elections were thrown out due to employer misconduct, the Board certified the union’s victory in a third vote in late 2005. Throughout 2006, the parties bargained, but the employer stymied progress for the entire year by insisting on three clauses: (1) a recognition clause allowing the employer to “unilaterally and arbitrarily” change all terms and conditions of employment; (2) the right to “manage its workforce at will,” including firing, hiring, and discipline, and (3) a grievance procedure granting management the right to make final adjustment. In 2007, the employer contracted with a company to employ and manage the workforce, and that contractor assumed the bargaining obligation; however, the employer retained control over the terms of any collective bargaining agreement. After another year of bargaining, the contractor and the union came close to reaching a collective-bargaining agreement without the objectionable language—almost immediately, the employer fired the contractor and reassumed responsibility for directly employing the workforce. The employer then withdrew recognition from the union, claiming that a majority no longer supported it, unilaterally changed numerous terms of employment, and forced all employees to reapply for the jobs, refusing to rehire seven employees on the bargaining committee. In response, the union urged a boycott of the employer’s hotel, and the employer warned employees against participating, threatening that it would hurt business and cause job loss.
As noted, the Board found that the employer violated the Act in numerous ways, and the Court agreed. First, the Court acknowledged that an employer bargains in bad faith by “insist[ing] on provisions that ‘would exclude the [union] from any effective means of participation in important decisions affecting the terms and conditions of employment of its members,’” and affirmed the Board’s finding that the employer had in that manner violated Section 8(a)(5) of the Act. Second, analyzing the employer’s withdrawal of recognition and its subsequent unilateral changes, the Court agreed with the Board that the employer showed no objective evidence of the union’s loss of majority support, and that the evidence it did offer—“testimony from a handful of employees concerning the reaction of other employees to the union boycott”—“amount[ed] to no more than evidence of the employees’ subjective assessment of the situation and is therefore insufficient.” Finally, the Court found that substantial evidence supported the Board’s conclusion that the employer acted on antiunion animus in refusing to rehire the seven negotiating committee members and in unlawfully threatening job loss.
The Court also held that the Board acted within its discretion in devising remedies for the employer’s serious unfair labor practices. In so finding, it endorsed extending the certification period by one full year to give the parties time to negotiate, awarding the union bargaining costs and expenses given that the union “wasted resources over a period of years during which [the employer] had no intention of reaching an agreement,” and issuing a broad cease and desist order.
Enforcing both the unfair labor practice order and affirming the district court’s 10(j) decision, the Court remarked:
Our rulings likely come as no surprise to the parties. Two themes repeat themselves in the decade-long history of this dispute. The first is [the employer’s] defiance of the Labor Act and its employees’ statutory rights. The second is [the employer’s] consistent losses before the agency and the courts. A skeptical adjudicator might question whether [the employer] has ever taken seriously its obligations under the law. We hope that we do not need to consider that question again.
The Court’s opinion is available here.
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Decisions of Administrative Law Judges
Caterpillar, Inc. (30-CA-064314; JD(ATL)-20-12) Milwaukee, WI. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers international Union, AFL-CIO/CLC. Administrative Law Judge Robert A. Ringler issued his decision on September 5, 2012.
Hawaiian Telcom, Inc. (20-CA-069432; et al.; JD(SF)-43-12) Honolulu, HI. Charges filed by International Brotherhood of Electrical Workers, Local 1357. Administrative Law Judge Mary Miller Cracraft issued her decision on September 5, 2011.
Gaylord Hospital (34-CA-013008, et al.; JD(NY)-26-12) Wallingford, CT. Charges filed by an individual. Administrative Law Judge Lauren Esposito issued her decision on September 6, 2012.
New NGC, IN., d/b/a National Gypsum Company (25-CA-031825, et al.; JD‑47‑12) Shoals, IN. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), AFL‑CIO, CLC, and United Steel Workers, Local 7-0354. Administrative Law Judge Jeffrey D. Wedekind issued his decision on September 7, 2012.
Blue Cross Blue Shield of Michigan (07-CA-073807; JD-45-12) Detroit, MI. Charge filed by an individual. Administrative Law Judge Bruce D. Rosenstein issued his decision on September 7, 2012.
Chapin Hill at Red Bank (22-CA-067608; JD(NY)-27-12) Red Bank, NJ. Charge filed by Local 707, Health Employees Alliance Rights and Trades (H.E.A.R.T.). Administrative Law Judge Mindy E. Landow issued her decision on September 7, 2012.
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