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Summary of NLRB Cases for Week of August 22-26, 2011

 

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.

* Due to the large volume of Board decisions issued this week, some case summaries will be included in next week's publication.

 

Summarized Board Decisions

Stericycle, Inc. (32-RC-30154; 357 NLRB No.53) Alameda County, CA, August 23, 2011.   

In Stericycle, the Board addressed the recurring issue of whether the filing of a lawsuit to redress unlawful employment practices, when financed by a union, prior to a representation election interferes with a fair election.

The Board announced a new approach to this issue, in view of relevant court decisions, holding that a union engages in objectionable conduct warranting a second election by financing a lawsuit filed during the narrow time period—known as the “critical period”—between the date of the filing of the representation petition and the date of the election, which states claims under Federal or State wage and hour laws or other similar employment law claims on behalf of employees in the unit.  The Board thus overruled prior Board law governing union-sponsored lawsuits filed during the critical period.  Applying this new rule to this proceeding, the Board found that the election must be set aside and a new election held, observing that the union expressly agreed to fund “the payment of all fees, costs, disbursement, and litigation expenses” of the lawsuit that was filed during the critical period, and that the unit employees were explicitly so notified.  Members Becker, Pearce, and Hayes joined in this holding.  Chairman Liebman dissented, and would adhere to Board law permitting a lawsuit to be filed during the critical period (Novotel New York, 321 NLR 624 (1996)).  Chairman Liebman explained that the Board’s new approach burdens activity protected by the NLRA and the First Amendment more than is necessary to preserve the integrity of Board elections.     

Petitioner – International Brotherhood of Teamsters, Auto Truck Drivers, Line Drivers, Car Haulers, and Helpers, Local No. 70 of Alameda County, California, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.  Administrative Law Judge Jay R. Pollack issued his report on objections and recommendations April 24, 2009.  Chairman Liebman and Members Becker, Pearce, and Hayes participated.

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Virginia Mason Hospital (A Division of Virginia Mason Hospital Center) (19‑CA‑30154; 357 NLRB No. 53) Seattle, WA, August 23, 2011.

The Board found that the Employer’s unilaterally-implemented flu-prevention policy was not exempt from bargaining under Peerless Publications, 283 NLRB 334 (1987). The Board ruled that the Administrative Law Judge erred in finding that the policy protected the core purposes of the enterprise, which could exempt an otherwise mandatory subject of bargaining.  The Board based its decision on earlier cases which held that Peerless Publications only applies in very limited circumstances.  The Board remanded the case to the Administrative Law Judge to address the Employer’s other affirmative defenses and ultimately determine whether the Employer’s actions violated the Act. 

Member Hayes, dissenting, would have found the Employer’s policy exempt and that the Peerless Publications exemption should not be strictly limited to a narrow set of facts.

Charge filed by Washington State Nurses Association.  Administrative Law Judge Gregory Z. Meyerson issued his decision September 12, 2006.  Chairman Liebman and Members Pearce and Hayes participated.

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Mesker Door, Inc.(10-CA-35863, et al.; 357 NLRB No.59) Huntsville, AL, August 24, 2011.

A unanimous panel of the Board reversed the Administrative Law Judge’s findings and found that the Respondent violated Section 8(a)(1) of the Act by suspending an employee for discussing union issues with another employee.  A panel majority (Chairman Liebman and Member Pearce) reversed the judge and found that the Respondent’s plant manager, in a speech to employees, made several statements, in addition to those found unlawful by the judge, that violated Section 8(a)(1), including a threat that by filing unfair labor practice charges against the company, employee bonus payments were lower than they would have been had they not filed charges.  Based on these additional unlawful statements in the speech, and other violations the judge found were committed earlier, the panel majority found that the Respondent could not lawfully withdraw recognition from the union based on a decertification petition signed by a majority of unit employees.  The  panel majority found that the petition was “tainted” by Respondent’s unlawful conduct and that by relying on the tainted petition to withdraw recognition from the union four days after the plant manager’s speech and, thereafter, making unilateral changes with respect to several employment terms of unit employees, the Respondent violated Section 8(a)(5) and (1).

Member Hayes, dissenting in part, disagreed with the additional violations found by the majority with respect to the plant manager’s speech.  In the absence of exceptions, Member Hayes agreed that the speech contained one unlawful threat.  He concluded, however, that neither that violation nor others committed months earlier tainted the petition relied on by the Respondent to withdraw recognition from the union. 

Charges filed by United Steelworkers of America, AFL-CIO-CLC.  Administrative Law Judge Keltner W. Locke issued his decision November 13, 2007.  Chairman Liebman and Members Pearce and Hayes participated.

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Ceva Logistics U.S., Inc. (5-RC-16452; 357 NLRB No. 60) Glen Burnie, MD, August 24, 2011. 

The Board found that the Regional Director properly overruled the Petitioner’s Objections 3 and 4, and thus denied the Petitioner’s request for review.  Petitioner’s Objection 3 asserted that the delay by the Board’s Regional Office in forwarding the Excelsior list to the Petitioner interfered with the Petitioner’s ability to communicate with employees prior to the representation election and precluded a fully informed electorate.  The Board agreed with the Regional Director that, under existing Board law, the delayed receipt of this list did not constitute objectionable conduct.  The Board further observed that the “recurring issue of delay in a petitioner’s receipt of an Excelsior list from our Regional Offices is addressed by the procedures set forth in the Board’s recent proposal to amend its rules and regulations governing the filing and processing of representation petitions.” See 76 F.R. 120 (June 22, 2011).  Chairman Liebman and Member Pearce also agreed with the Regional Director that the Petitioner’s Objection 4, which claimed that the Regional Director erred in holding the election on a non-working day on which the Employer held a mandatory employee meeting, was also not objectionable. 

Member Becker concurred with his colleagues in finding that the Regional Director properly overruled Petitioner’s Objection 3; however, contrary to his colleagues, he would have sustained Objection 4, and set aside the election. 

Petitioner – Teamsters Local 570, a/w International Brotherhood of Teamsters.  Chairman Liebman and Members Becker and Pearce participated.

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Los AngelesTimes Communications, LLC(21-UD-415; 357 NLRB No.66) Los Angeles, CA, August 25, 2011.

The Board found that the language of the relevant statutory provisions compelled it to process a petition to rescind the authority of a union to enter into a union-security  agreement requiring unit employees to pay agency fees to the union even though loss of employment is not a possible sanction for the employees’ non-payment.  In reversing the Regional Director’s decision to administratively dismiss the petition, the majority concluded that the union-security clause necessarily was an agreement made pursuant to Section 8(a)(3) in the words of Section 9(e)(1) because the clause encouraged membership in a union as that term has been defined by the Board.  In dissenting Member Pearce’s view, however, the plain language of the statute, the relevant case law, and Board rules and regulations warrant the conclusion that the union-security clause does not require membership as a condition of employment and therefore does not  constitute an agreement made pursuant to Section 8(a)(3).  He also concluded that the policies of the Act would be better served by the petition’s dismissal than by its reinstatement.

Petitioner – an Individual.  Chairman Liebman and Members Becker, Pearce, and Hayes participated.

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Europa Auto Imports, Inc., d/b/a Mercedes-Benz of San Diego(21-RC-21210; 357NLRB No. 67) San Diego, CA,August 25, 2011.

The Board adopted the Hearing Officer’s recommendation to overrule an election objection and sustain the challenge to the ballot of an alleged supervisor.  In adopting the judge’s finding that the Employer did not establish objectionable conduct, the Board found that the Employer could not raise changed circumstances regarding the eligibility of two employees through a post-election objection, when the Employer had multiple pre-election opportunities to present its evidence.   The Board found that the Petitioner, International Association of Machinists and Aerospace Workers, AFL-CIO District Lodge 190, should be certified as the representative of the Employer’s technicians.

Petitioner – International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 190.  Hearing Officer issued decision November 23, 2010.   Chairman Liebman and Members Becker and Pearce participated. 

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Triple A Fire Protection, Inc.(15-CA-11498; 357 NLRB No. 68) Mobile, AL, August 26, 2011.

In this compliance proceeding, the Board affirmed the Administrative Law Judge’s findings concerning the backpay amounts owed by the Respondent to employees, and the amounts owed by the Respondent to make three benefit funds whole due to its failure to make required payments to those funds. The Board observed that when a respondent, as in this proceeding, unlawfully ceases making required payments to benefit funds on behalf of employees, the appropriate remedy is to require that the funds be made whole for the missed payments.  The Board further determined that the Respondent owes interest and liquidated damages on the delinquent fund payments, pursuant to the funds’ governing documents, by which the Respondent agreed to be bound in its collective-bargaining agreement with the union.  The Board explained that where the provisions in the funds’ governing documents provide for interest and liquidated damages on delinquent payments, settled Board law dictates that the contractual terms be enforced. Finally, the Board noted that the Respondent’s monetary ability to comply with the make-whole order is not a relevant consideration at this stage of the proceeding. 

Charge filed by United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Road Sprinkler Fitters Local 669, AFL-CIO.  Administrative Law Judge Keltner W. Locke issued his supplemental decision February 10, 2010.  Chairman Liebman and Member Becker and Pearce participated.

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All Seasons Climate Control, Inc. (8-CA-37931, et al.; 357 NLRB No. 70)  Norwalk, OH, August 26, 2011.

A unanimous panel of the Board adopted the Administrative Law Judge’s conclusions that the Respondent Employer violated 8(a)(5) and (1) of the Act by soliciting and encouraging employees to circulate decertification petitions, withdrawing recognition based on one such petition, and by failing to provide necessary and relevant information requested by the union.    The Board provided the following remedies recommended by the judge:  an affirmative bargaining order, a 12-month extension of the certification year, and a bargaining schedule requiring the Respondent to bargain with the union for a minimum of 15 hours per week and to submit periodic progress reports to the Region’s Compliance Officer. 

Charges filed by Sheet Metal Workers International Association, Local Union No. 33 of Northern Ohio, AFL-CIO.  Administrative Law Judge Ira Sandron issued his decision August 24, 2009.  Chairman Liebman and Members Becker and Pearce participated. 

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Prime Healthcare Services Garden Grove, LLC d/b/a Garden Grove Hospital & Medical Center (21‑CA-39031;357 NLRB No. 63) Garden Grove, CA, August 26, 2011. 

The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act when it rescinded the reserve sick leave benefit in April 2009.  The Board modified the judge’s recommended remedy to provide that the Respondent must not only restore unit employees’ accrued sick leave benefit time that it rescinded on April 17, 2009, but must also credit unit employees with such additional time as they should accrue until the Respondent complies with the Board’s order to restore the reserve sick leave benefit.

Charge filed by Service Employees International Union, United Healthcare Workers-West.  Administrative Law Judge Jay R. Pollack issued his decision August 4, 2010.  Chairman Liebman and Members Pearce and Hayes participated.

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Anthony’s Painting, LLC (14-CA-30082; 357 NLRB No. 62) St. Louis, MI, August 25, 2011.

The Acting General Counsel sought a default judgment in this case on the ground that the Respondent withdrew its answer to the complaint and did not file an answer to the amended complaint.  The Respondent, an employer engaged in the building and construction industry, recognized the union as the exclusive collective-bargaining representative of the unit without regard to whether the majority status of the union had ever been established under the provision of Section 9(a) of the Act.  Such recognition had been embodied in a collective-bargaining agreement, which the Respondent signed on November 30, 2005, and which was effective through August 31, 2010 (the 2005-2010 agreement).

Charge filed by Painters District Council No. 2.  Chairman Liebman and Members Pearce and Hayes participated.

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Jung Sun Laundry Group Corporation (29-CA-29946; 357 NLRB No. 64) Long Island, NY, August 26, 2011.

The Acting General Counsel sought a default judgment in this case on the ground that the Respondent failed to file an answer to the compliance specification.  On November 30, 2010, the Board issued an unpublished order that found, among other things, that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate striking employees upon their unconditional offer to continue to make contractually-required contributions to the union’s Health, Retirement and Legal Education Funds.  The Board ordered the Respondent, among other things, to offer full reinstatement to its striking employees and to make them whole for loss of earnings and other benefits resulting from the discrimination against them; and to reimburse the union’s funds for any and all contributions due and owing as a result of its unlawful failure to adhere to existing terms and conditions of employment.

Charge filed by Laundry, Distribution and Food Service Joint Board Workers United, affiliated with SEIU.  Chairman Liebman and Members Pearce and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Case

St.Xavier University (13-RC-22025) Chicago, IL, August 25, 2011.  Order granting motion to file amicus briefs.  Petitioner – St. Xavier University Adjunct Faculty Organization, IEA-NEA.

Pomptonian Food Service (22-RM-755) Fairfield, NJ, August 25, 2011.  Order remanding case to Regional Director for action consistent with this order.  Petitioner – Local 32BJ, SEIU.  Chairman Liebman and Members Becker and Hayes participated.

Sands Bethworks Gaming, LLC d/b/a Sands Casino Resort Bethlehem (4-RC-21833) Bethlehem, PA, August 25, 2011.  Order denying the Employer’s request for review of the Regional Director’s decision and direction of election was inadvertently not faxed to all parties in the case.  Petitioner – Law Enforcement Employees Benevolent Association

Omnova Solutions, Inc. (26-RD-01182) Columbus, MS, August 25, 2011.  Order denying the Union’s request for review of the Regional Director’s decision and direction of election was inadvertently not faxed to all parties in the case.  Union – United Steel Workers, AFL-CIO-CLC, on behalf of its Local Union 748-L.

Black Hills/Colorado Electric Utility Company, LP (27-UC-229) Pueblo, CO, August 26, 2011.  Order granting request for review and remanding proceeding to Regional Director for further appropriate action and to issue a supplemental decision on the merits of the petition.  Petitioner – Black Hills/Colorado Electric Utility Company, LP.   Chairman Liebman and Members Becker and Pearce participated. 

New York University (2-RC-23481) New York, NY, August 26, 2011.   Order granting motion to file amicus curiae brief.  Responsive briefs are due in Washington, DC by close of business September 9, 2011.   Petitioner – GSOC/UAW.

Kaiser Foundation Health Plan, Inc.: Kaiser Foundation Hospitals: Southern California Permanente Medical Group; The Permanente Medical Group, Inc. (32-RC-5775) Pasadena, CA, August 26, 2011.  Order denying Petitioner’s motion for reconsideration of the Board’s August 10, 2011 order granting motions.  Petitioner – National Union of Healthcare Workers.  Chairman Liebman and Members Pearce and Hayes participated.

C Case

Seaport Printing & AD Specialties, Inc., d/b/a Port Printing Ad and Specialties (15-CA-17976) Lake Charles, LA, August 22, 2011.  Order remanding case to Regional Director for further action consistent with this decision.  Charge filed by Lake Charles Printing and Graphics Union, Local 260 affiliated with Graphic communications International Union, AFL-CIO.  Chairman Liebman and Members Pearce and Hayes participated.

Tribeca Market LLC d/b/a Amish Market (2-CA-39912) New York, NY, August 19, 2011.  Order adopting the Administrative Law Judge’s decision and ordering the Respondent to take the action set forth in the recommended order of the judge.  Charge filed by an Individual.

San Pablo Lytton Casino (32-CA-25665) San Pablo, CA, August 23, 2011.  Order denying petitions to revoke subpoenas.  Charge filed by UNITE HERE Local 2850.  Chairman Liebman and Members Pearce and Hayes participated.

Masores Bais Yaakov (29-CA-30599) Brooklyn, NY, August 25, 2011.  Order denying Respondent’s motion for summary judgment.  Charge filed by an Individual.  Chairman Liebman and Members Becker and Pearce participated.

IAP World Services, Inc. (31-CA-29505) Fort Irwin, CA, August 24, 2011.  Order denying Acting General Counsel’s request for special permission to appeal.  Charge filed by Teamsters, Chauffeurs, Warehousemen, Industrial and Allied Workers of America, Local 166.  Chairman Liebman and Members Becker and Pearce participated.

GCA Services Group, Inc. (28-CA-23513) Mesa, AZ, August 24, 2011.  Order remanding proceeding to Regional Director for further appropriate action.  Charge filed by United Food and Commercial Workers Union, Local 99, AFL-CIO.  Chairman Liebman and Members Becker and Pearce participated.

California Nurses Association, National Nurses Organizing Committee (31-CB-12913) Glendale, CA, August 26, 2011.  Order denying Respondent’s motion for summary judgment.  Member Becker, dissenting: would grant the Respondent’s motion.  Chairman Liebman and Members Becker and Pearce participated.

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Appellate Court Decisions

No Appellate Court decisions involving NLRB cases were issued this week.

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Decisions of Administrative Law Judges

E. I. Du Pont de Nemours and Company (5-CA-33461; JD-49-11) Ampthill, VA.  Decision and order transferring proceeding to NLRB.  Charge filed by Ampthill Rayon Workers, Inc., Local 992, International Brotherhood of Du Pont Workers.  Administrative Law Judge Michael A. Rosas issued his decision August 22, 2011.

Independence Residences, Inc. (29-CA-30566; JD(NY)-27-11) Woodhaven, NY.  Decision and order transferring proceeding to the NLRB.  Charge filed by Workers United, Service Employees International Union.  Administrative Law Judge Steven Fish issued his decision August 24, 2011.

American Red Cross, Blood Services, Connecticut Region (34-CA-12422, et al.; JD(NY)‑28‑11) Farmington, CT.  Decision and order transferring proceeding to NLRB.  Charge filed by American Federation of State, Count and Municipal Employees, Local 3145 of Council 4.  Administrative Law Judge Eleanor MacDonald issued her decision August 24, 2011.

Remington Hotel Corporation d/b/a The Sheraton Anchorage, Anchorage, AK (19-CA-32148, et al.; JD(SF)-32-11) Anchorage, AK.  Decision and order transferring proceeding to NLRB.  Charge filed by UNITE HERE!, Local 878, AFL-CIO.  Administrative Law Judge Gregory Z. Meyerson issued his decision August 25, 2011.

Columbia Memorial Hospital (3-CA-27921, 27967; JD-50-11) Hudson, NY.  Decision and order transferring proceeding to NLRB.  Charges filed by 1199 SEIU, United Healthcare Workers East.  Administrative Law Judge Paul Bogas issued his decision August 26, 2011.

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