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Summary of NLRB Decisions for Week of April 16-20, 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 Decision

Dresser-Rand, Company (03‑CA-0027141; 358 NLRB No. 34) Painted Post, NY, April 18, 2012.

The Board agreed with the administrative law judge’s finding that an employee’s phone calls to third parties constituted protected, concerted activity.  It also adopted the judge’s finding that the respondent did not violate Section 8(a)(1) of the Act when it discharged that employee for his unprotected statement concerning a drop in workload at one of the respondent’s facilities.  The Board found it unnecessary to pass on the protected nature of that employee’s statement concerning the respondent’s chief executive officer.  Member Hayes, in agreement with the judge, noted that he would find both statements unprotected, and find it unnecessary to decide whether the employee’s remaining statements were protected or whether the employee was engaged in concerted activity in making any of the statements. 

The Board also agreed with the judge’s finding that the respondent violated Section 8(a)(1) by questioning employees about the charging party’s internal procedures, policies, and deliberations.  Member Hayes agreed that the question regarding the bargaining committee’s “plans to provide information to the press, public and/or securities analysts relating to the company’s changes” to its bargaining position was unlawful, and he therefore found it unnecessary to pass on the judge’s findings with respect to the respondent’s other questions inasmuch as they would not materially affect the remedy.       

Charge filed by Local 313, IUE-CWA, AFL-CIO.  Administrative Law Judge Paul Buxbaum issued his decision on February 18, 2011.  Chairman Pearce and Members Hayes and Griffin participated.

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DirecTV U.S. DirecTV Holdings, LLC (21-CA-071591; 358 NLRB No. 33) Rancho Dominguez, CA, April 16, 2012.

This is a refusal-to-bargain case in which the respondent was contesting the union’s certification as bargaining representative.  The Board ordered the respondent to cease and desist from failing and refusing to recognize and bargain with the union, as the exclusive collective-bargaining representative of the employees in the bargaining unit; refusing to furnish the union with information that was relevant and necessary to its role as the collective-bargaining representative; and interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act.

Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 947.  Chairman Pearce and Members Hayes and Griffin participated.

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Park Avenue Investment Advisor, LLC d/b/a Met Hotel Detroit/Troy d/b/a Metropolitan Hotel Group (07-CA-060921; 358 NLRB No. 30) Troy, MI, April 17, 2012.

The Acting General Counsel sought a default judgment in this case on the ground that respondent failed to file an answer to the complaint.  The Board ordered the respondent to cease and desist from failing and refusing to bargain collectively and in good faith with the union as the exclusive collective-bargaining representative of the unit employees; failing to remit to the union dues collected from unit employees prior to the expiration of the collective-bargaining agreement; interfering with, restraining, and coercing its employees in the exercise of their rights to join and assist a labor organization, by failing to remit to the union dues checked off after the expiration of the collective-bargaining agreement, if the dues were deducted pursuant to the employees’ valid, unexpired, and unrevoked check off authorizations, or by deducting and failing to return to the employees dues checked off after the expiration of the collective-bargaining agreement, if the dues were deducted pursuant to expired or revoked check off authorizations; unilaterally suspending payments to the Wayne County HealthChoice program for unit employees’ health insurance, making some payments only in a sporadic and intermittent fashion; unilaterally suspending payments to the UNITE HERE Health “Culinary” Fund for unit employees’ life, vision, and dental insurance; unilaterally suspending payments to the National Retirement Fund for the unit employees; unilaterally disregarding seniority with respect to the scheduling of its unit employees; and interfering with, restraining or coercing employees in the exercise of the rights guaranteed them by the Act.

Charge filed by UNITE HERE, Local 24, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

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Enterprise Leasing Company-Southeast, LLC (11-CA-073779; 358 No. 35) Raleigh, NC, April 18, 2012.

This is a refusal-to-bargain case in which the respondent was contesting the union’s certification as bargaining representative.  The Board ordered the respondent to cease and desist from failing and refusing to recognize and bargain with the union as the exclusive collective-bargaining representative of the employees in the bargaining unit; and interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act.

Charge filed by International Brotherhood of Teamsters, Local 391.  Chairman Pearce and Members Hayes and Griffin participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Case

Freeman (16-RC-070839, et al.) Dallas, TX, April 17, 2012.  Order denying petitioner’s request for review of the Regional Director’s decision and direction of election.  Petitioner – Texas Carpenters Regional Council.  Chairman Pearce and Members Flynn and Block participated.

Shanta Corporation d/b/a St. Anne’s Convalescent Center (07-RC-072836) Detroit, MI, April 17, 2012.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Member Flynn dissented: would have granted the employer’s request for review.  Petitioner – SEIU Healthcare Michigan.  Chairman Pearce and Members Flynn and Block participated.

American Medical Response Ambulance Service, Inc. (28-RC-074676) Las Cruces, NM, April 20, 2012.  Order denying employer’s request for review of the Regional Director’s decision and direction of election.  Member Flynn dissented:  would have granted review.  Petitioner – National  Emergency Medical Services Association.  Chairman Pearce and Members Flynn and Block participated.

C Cases

Star West Satellite, Inc. (19-CA-075174) Bozeman, MT, April 17, 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 International Brotherhood of Electrical Workers, Local 206, affiliated with International Brotherhood of Electrical Workers, AFL-CIO.

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (Trimas Corporation d/b/a Cequent Towing Products) (25-CB-008891, et al.) Goshen, IN, April 16, 2012.  Order denying the charging parties’ motion for reconsideration.  Charges filed by individuals.  Chairman Pearce and Members Hayes and Griffin participated.

Ralphs Grocery Company (31-CA-027160, et al.) Los Angeles, CA, April 17, 2012. Amended order granting charging parties’ motions for reconsideration, to reopen the record, and remanding proceeding to Chief, Administrative Law Judge for further appropriate action.  Charges filed by United Food and Commercial Workers, Locals 135, 324, 770, 1036, 1167, 1428, 1442. 

Professional Electrical Contractors (34-CA-067376, et al.) Hartford, CT, April 18, 2012.  Order denying petition to revoke subpoena.  Charges filed by International Brotherhood of Electrical Workers, Local 35.  Members Hayes, Griffin, and Flynn participated.

47 Old Country, Inc. d/b/a Babi I; Jilly SN, Inc.; Babi Nail USA Corp. d/b/a Babi II (29‑CA‑030247) Carle Place, NY, April 18, 2012.  Order denying petition to revoke subpoena duces tecum B‑562696.  Charge filed by Chinese Staff and Workers’ Association.  Chairman Pearce and Members Flynn and Block participated.

International Brotherhood of Electrical Workers, Local 34, AFL-CIO (13-CB-018961, et al.) Chicago, IL, April 18, 2012.  Charges filed by an individual.  Chairman Pearce and Members Hayes and Griffin participated.

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (Trimas Corporation d/b/a Cequent Towing Products)(28-CB-008891, et al.) Goshen, IN, April 18, 2012.  Order deny0ing motion for reconsideration.  Charges filed by individuals. 

Nestle-Dreyer’s Grand Ice Cream, Inc. (31-CA-074297) Bakersfield, CA, April 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 International Union of Operating Engineers, Local 501, AFL-CIO.

Big Sky Hospitalities, LLC d/b/a Butte War Bonnet Hotel (19-CA-033164, et al.) Butte, MT, April 19, 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 UNITE HERE! Local 427.

Winona County Sheriff’s Department (18-WH-074674) Winona, MN, April 20, 2012.  Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938. Petitioner – Law Enforcement Labor Service, Inc.

Haverhill North Coke Corporation (09-CA-065961) Franklin Furnace, OH, April 20, 2012.  Decision and order pursuant to a settlement stipulation.  Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers, Local 2116.  Chairman Pearce and Members Flynn and Block participated.

Case Farms Processing, Inc. (08-CA-039152, et al.) Winesburg, OH, April 20, 2012.  Order granting the joint motion to withdraw counsel for the Acting General Counsel’s exceptions and respondent’s exceptions.  Charges filed by UFCW, Local 880.

American Red Cross Arizona Blood Services Region                                                                        (28-CA-023443) Tucson, AZ, April 20, 2012.  Order granting joint motion to remand cases to the Regional Director for further appropriate action.  Charge filed by an individual.

Sand Bethwork Gaming, LLC d/b/a Sands Casino Resort Bethlehem (04-CA-076289) April 20, 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 Law Enforcement Employees Benevolent Association.

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Appellate Court Decisions

Stephens Media, LLC, Board Case No. 37-CA-7043 (reported at 356 NLRB No. 63) (D.C. Circuit decided April 20, 2012)

In a published opinion, the Court denied the newspaper’s petition for review, and enforced the Board's order in full.

The Board found, and the Court agreed, that the newspaper committed a multitude of unfair labor practices against its union-represented news staff.  Those violations included unlawful interrogations, discriminatorily enforcing an access policy against union representatives, prohibiting employees from wearing buttons and armbands in support of coworkers, forbidding surreptitious recording conversations with management, issuing written warnings, and refusing to provide relevant information. 

The Court found it necessary to discuss only a few issues.  First, the Court agreed with the Board that the employer unlawfully suspended, and then discharged, a shop steward for attempting to provide Weingarten representation to a coworker he thought was about to undergo a disciplinary interview.  The employer claimed that the steward did not enjoy the Act's protection because the employee was not actually entitled to Weingarten representation; the Court, however, rejected that argument, noting that, regardless of whether the steward was right about Weingarten, he was engaging in protected activity in attempting to provide representation.  The Court similarly rebuffed arguments that the steward's aggressive behavior was opprobrious and that he engaged in pre-discharge conduct that would have justified his discharge.  Finally, because it failed to make the claim to the Board, the Court found that the employer waived any argument that the Board applied the wrong legal standard in concluding that the steward's post-discharge public statements about the employer's management problems precluded his reinstatement. 

Second, the Court held that four employees engaged in concerted, protected activity when they developed a plan for one of them to secretly record a meeting with management to document management's denial of Weingarten rights.  In so holding, the Court found their activity protected because "under established Board precedent, there is no per se rule that the making of surreptitious recordings is unprotected activity; the Company had no policy in effect prohibiting audio recordings; and it is undisputed that the recording was not unlawful under state or local law." 

Finally, the Court held that the Board's decision to sever a remaining allegation for further consideration did not render the Board's order non-final.

The Court's decision is available here.

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Stage Hands Referral Service, LLC, Board Case No. 34-CA-10971 (published at 356 NLRB No. 152) (D.C. Circuit decided April 17, 2012).

In an unpublished judgment opinion, the Court enforced the Board's backpay order in this compliance case.  The Union offered no challenges to the Board's award of $77,455 to the discriminatee (whom the Union had unlawfully refused to refer to jobs), except to propound several procedural claims concerning the Board's refusal to consider the Union's post-hearing brief to the administrative law judge, which the Union belatedly offered to support its exceptions.  The Court succinctly rejected the Union's claims that (a) the Board's regulations made the post-hearing brief part of the record before the Board; (b) the Board abused its discretion in not accepting the post-hearing brief 25 months after the Union's exceptions were due; and (c) the Board incorrectly refused to consider three of the Union's exceptions that did not state their grounds with particularity (indeed, the Court called them "incomprehensible"). 

The Court's decision is available here.

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New York-New York, LLC, Board Case No. 28-CA-14519 (reported at 356 NLRB No. 119) (D.C. Circuit decided April 17, 2012)

In a published opinion, the Court enforced the Board's order, upholding the Board’s finding that the employer acted unlawfully by barring employees of an onsite contractor from distributing union-related handbills on its property. 

New York-New York ("NY-NY") is a Las Vegas casino and hotel, and Ark Las Vegas is a contractor whom NY-NY hired to operate restaurants in the casino and hotel.  In 1997, NY-NY prohibited Ark's employees from passing out union-related handbills in front of their workplaces, but on NY-NY's property; the Board found that action unlawful.  In 2002, the D.C. Circuit remanded the Board's initial decision for fuller explanation because the Board failed to reconcile whether Ark's employees should be treated as employees with full rights under Republic Aviation or as nonemployees with only derivative rights under Lechmere.  In remanding, however, the Court "emphasiz[ed] that the status of an onsite contractor's employees for these purposes was an issue committed primarily to the Board's discretion under the Act."  On remand, the Board answered the Court's concerns and "again concluded that a property owner generally may not bar employees of an onsite contractor from distributing union-related handbills on the property," absent a specific showing of disruption or other legitimate business reason.

This time, the Court enforced the Board's order.  The Court noted that its 2002 decision rejected the main argument NY-NY raised in the current appeal--that Ark's workers should be treated as nonemployees--instead leaving the question up to the Board's discretion.  Given that the Court had little concern with the Board's exercise of that discretion on remand, NY-NY's "beef is really with this Court's prior panel decision."   Although the Court noted that NY-NY could seek en banc review to overrule the prior panel decision, the Court held that the prior decision controlled the result here.  Judge Henderson wrote a concurrence, explaining why she concluded that the Board properly balanced the Act, the policy interests, and the Court's concerns on remand.

The Court's opinion is available here

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Decisions of Administrative Law Judges

S &  F Market Street Healthcare LLC, a California limited liability company, d/b/a Windsor Convalescent Center of North Long Beach (21-CA-039703; JD(SF)-10-12) Los Angeles, CA.  Charge filed by SEIU, United Long Term Care Workers, Local 6434.  Administrative Law Judge John J. McCarrick issued his decision on April 16, 2012.

American Baptist Homes of the West d/b/a Piedmont Gardens (32-CA-063475; JD(SF)-18-12) Oakland, CA.  Charge filed by Service Employees International Union, United Healthcare Workers-West.  Administrative Law Judge Gerald M. Etchingham issued his decision on April 16, 2012.

United States Postal Service (34-CA-012912; JD(NY)-11-12) Mt. Carmel, CT.  Charge filed by National Association of Letter Carriers Merged Branch No. 19.  Administrative Law Judge Raymond P. Green issued his decision on April 16, 2012.

Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County (04-CA-064458; JD‑18‑12) Salem, NJ.  Charge filed by Health Professionals and Allied Employees (HPAE).  Administrative Law Judge Robert A. Giannasi issued his decision on April 17, 2012.

Ocean Buffet, LLC (22-CA-030034; JD(NY)-12-12) Clifton, NJ.  Charge filed by 318 Restaurant Workers Union.  Administrative Law Judge Steven Fish issued his decision on April 17, 2012.

Grede II, LLC (11-CA-022980, et al.; JD(ATL)-10-12) Biscoe, NC.  Charges filed by United Steel, Paper and orestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.  Administrative Law Judge George Carson II issued his decision on April 19, 2012.

Miklin Enterprises, Inc. d/b/a Jimmy John’s (18-CA-019707, et al.; JD-19-12) Minneapolis-St. Paul, MN.  Charges filed by Industrial Workers of the World.  Administrative Law Judge Arthur J. Amchan issued his decision on April 20, 2012.

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