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Summary of NLRB Decisions for Week of April 22-26, 2013

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

Caterpillar, Inc.  (30-CA-064314, 359 NLRB No. 97) Milwaukee, WI, April 23, 2013. 

The Board adopted the administrative law judge’s finding that the respondent violated Section 8(a)(1) and (5) by denying access to the international union’s health and safety specialist to conduct a health and safety inspection after a fatal accident.  The Board found that the judge properly applied Holyoke Water Power Co.’s (273 NLRB 1369) balancing test to conclude that the respondent’s property rights must yield to the employees’ right to responsible representation.  However, the Board amended the remedy, finding that the respondent did not demonstrate a compelling confidentiality interest that would support the judge’s conditioning of access upon execution of a confidentiality agreement. 

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.  Chairman Pearce and Members Griffin and Block participated.

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Olympic Supply, Inc. d/b/a Onsite News  (05-CA-076019, et al., 359 NLRB No. 99) Baltimore, MD, April 23, 2013.  

The Board found that the respondent violated Section 8(a)(1) by threatening employees with stricter enforcement of work rules if they supported the union.  In addition, the Board found that the respondent’s Section 8(a)(1) conduct also constituted objectionable conduct sufficient to set aside the election.  The Board thus set aside the election and directed a second election.   

Charges filed by UNITE HERE! Local 7.  Administrative Law Judge Michael A. Rosas issued his initial decision on September 28, 2012 and a supplemental decision on November 7, 2012.  Chairman Pearce and Members Griffin and Block participated. 

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Remington Lodging & Hospitality, LLC d/b/a The Sheraton Anchorage  (19‑CA‑032148, et al., 359 NLRB No. 95) Anchorage, AK, April 24, 2013.

The Board adopted the administrative law judge’s findings that the employer violated the Act by (1) changing unit employees’ terms and conditions of employment after contract expiration without first providing at least 30 days’ notice to the Federal Mediation & Conciliation Service; (2) unilaterally implementing a new health benefit plan without first bargaining to impasse or agreement; (3) disciplining nine off-duty employees for presenting a boycott petition to the employer in its hotel lobby; (4) discharging four off-duty employees for distributing boycott handbills under the hotel’s porte cochere; (5) maintaining and/or enforcing eight separate employee handbook rules; (6) soliciting unit employees to sign a decertification petition; and (7) withdrawing recognition from the union.  Reversing the judge, the Board found that the employer violated the Act by unilaterally implementing a performance incentive plan for unit employees.  Additionally, the Board adopted the judge’s dismissal of complaint allegations that the employer violated the Act by subcontracting certain bargaining-unit work and by denigrating the union.

Charges filed by UNITE-HERE! Local 878, AFL-CIO.  Administrative Law Judge Gregory Z. Meyerson issued his decision on August 25, 2011.  Chairman Pearce and Members Griffin and Block participated.

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Hartman and Tyner, Inc., d/b/a Mardi Gras Casino and Hollywood Concessions, Inc.  (12‑CA‑072234 et al., 359 NLRB No. 100) Hallandale Beach, FL, April 25, 2013.

The Board adopted the administrative law judge’s findings that, during an organizing drive, the respondent violated Section 8(a)(1) of the Act by coercively interrogating employees, threatening an employee with unspecified reprisals, threatening employees with arrest, and linking an employee’s discharge to her protected activity.  The Board also adopted the judge’s finding that the respondent violated Section 8(a)(3) and (1) by discharging eight employees, including five employees who attempted to meet with the respondent’s chief operating officer as part of a delegation.  In adopting the judge’s finding that the respondent unlawfully discharged two of the employees, the Board noted that the employees were discharged for engaging in the protected activity of requesting employee contact information in furtherance of organizing activity.

Charges filed by UNITE HERE! Local 355, affiliated with UNITE HERE!  Administrative Law Judge George Carson II issued his decision on September 18, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Flamingo Las Vegas Operating Company, LLC  (28-CA-069588, et al., 359 NLRB No. 98) Las Vegas, NV, April 25, 2013.

The Board adopted the administrative law judge’s findings of a number of Section 8(a)(1) violations by Flamingo Las Vegas Operating Company, including threats and the creation of impressions of surveillance.  The Board dismissed two Section 8(a)(1) allegations – the first that the respondent had promulgated a work rule when a supervisor made a comment to an employee about following the chain-of-command, and the second that the respondent had created an impression of surveillance when a supervisor made comments about an unnamed union “instigator.” 

Charges filed by International Union, Security, Police and Fire Professionals of America (SPFPA).  Administrative Law Judge Gregory Z. Meyerson issued his decision on June 25, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Mountain View Country Club, Inc.  (21-CA-083930, 359 NLRB No. 102) La Quinta, CA, April 25, 2013. 

The Board unanimously adopted the administrative law judge’s finding that the respondent, a country club and golf course, violated Section 8(a)(5) of the Act by failing to timely provide information about the discipline of bargaining unit employees to the union.  The Board clarified that, even if the union had withdrawn its request for the information on June 26, 2012, the respondent’s 55‑day delay in responding to the request before that date and its 36‑day delay after the union renewed its request on July 18, 2012 were unreasonable, given the minor burden of providing 14 pages of already-existing records.

Charge filed by Laborers’ Pacific Southwest Regional Organizing Coalition, Laborers’ International Union of North America, AFL-CIO.  Administrative Law Judge Mary Miller Cracraft issued her decision on January 24, 2013.  Chairman Pearce and Members Griffin and Block participated.

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Sprain Brook Manor Nursing Home, LLC  (02-CA-040231, et al., 359 NLRB No. 105) Scarsdale, NY, April 26, 2013.

The Board found that the employer violated the Act by threatening an employee with unspecified reprisals for seeking assistance from the union and threatening that if the employee sought union representation she would not receive payments owed to her in connection with the compliance settlement in Sprain Brook Manor, LLC, 351 NLRB 1190 (2007).  The Board also found that the employer violated Section 8(a)(3) and (1) of the Act by discharging that employee, but found it unnecessary to pass on whether the discharge also violated Section 8(a)(4) because finding that additional violation would not materially affect the remedy.  In addition, the Board found that the employer violated the Act by suspending and subsequently discharging another employee.  The Board further found that the employer violated the Act by changing employees’ terms and conditions of employment without giving the union notice and an opportunity to bargain about the changes.  Specifically, the Board found that the employer violated the Act by discontinuing its practice of providing a free hot lunch to employees; discontinuing its practice of providing on‑site check-cashing privileges to employees; discontinuing its practice of providing free on-site physicals and PPD (tuberculosis) examinations to employees; and discontinuing “medical expenses” payouts to employees who were not enrolled in the health plan offered by the employer. 

Because of the employer’s demonstrated proclivity to violate the Act, the Board ordered that the remedial notice be read aloud to the employees by a management official or a Board agent in the presence of a management official.  The Board also ordered the employer to cease and desist from “in any other manner” interfering with, restraining, or coercing employees in the exercise of their rights under the Act.  In addition, the Board granted tax compensation and Social Security reporting remedies.

Charges filed by 1199 SEIU United Healthcare Workers East.  Administrative Law Judge Mindy E. Landow issued her decision on November 8, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Shands Jacksonville Medical Center, Inc.  (12-CA-026649, et al., 359 NLRB No. 104) Jacksonville, FL, April 26, 2013.

The Board agreed with the administrative law judge’s finding that deferral to an arbitration award was appropriate under Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984), and adopted the judge’s dismissal of the complaint alleging that an employee’s discharge violated Section 8(a)(3) and (1) of the Act.  The Board found that the arbitrator had adequately considered the unfair labor practice issue and that the award, ordering the employee’s reinstatement without backpay and credit for time lost, was not clearly repugnant to the Act.  The Board declined to pass on the Acting General Counsel’s request that the Board adopt a new framework for considering post-arbitration deferral cases, in accordance with GC Memorandum 11-05.

Charges filed by American Federation of State, County and Municipal Employees Council 79, AFL-CIO, American Federation of State, County and Municipal Employees Council 1328, AFL‑CIO, and an individual.  Administrative Law Judge Ira Sandron issued his decision on July 3, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

GES Exposition Services  (15-RD-101260) New Orleans, LA, April 23, 2013.  Order denying the petitioner’s request for review of the Regional Director’s administrative dismissal of the petition as it raised no substantial issues warranting a reversal of the Regional Director’s action and affirming the Regional Director’s dismissal of the petition.  Petitioner – an individual.  Chairman Pearce and Members Griffin and Block participated.

EKO Painting, Inc.  (20-RC-082348) Honolulu, HI, April 24, 2013.  The Board granted the employer’s request for special permission to appeal the order of a mail ballot election scheduled for April 15, 2013, but denied the appeal on its merits.  The employer provides construction services on the Island of Oahu, Hawaii.  The Regional Director had ordered a mail ballot because the employer’s worksites were scattered around Oahu, its employees travelled directly from their homes to the worksites, and there were a number of non-current employees eligible to vote who were likely widely scattered both by location and working hours.  The employer denied that its worksites were scattered or that the non-current eligible employees were of great number.  In denying the employer’s appeal, the Board found that the Regional Director had not abused his discretion in ordering the mail ballot.  Petitioner – International Union of Painters and Allied Trade, Painters Union, Local 1791.  Chairman Pearce and Members Griffin and Block participated.

Ardit Company (The)  (09-RC-083978) Columbus, OH April 24, 2013.  Order denying The Ardit Company’s request for review of the Regional Director’s second supplemental decision and order because it raised no substantial issues warranting review.  Petitioner – International Union of Bricklayers and Allied Craftworkers, Ohio Kentucky Administrative Counsel, Local 18.  Chairman Pearce and Members Griffin and Block participated.

STG International, Inc.  (21-RC-097525) El Centro, CA, April 25, 2013.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election, and the employer’s request to hold this proceeding in abeyance.  Petitioner – Teamsters, Chauffeurs, Warehousemen and Helpers, Local 542, International Brotherhood of Teamsters.  Chairman Pearce and Members Griffin and Block participated.

Hospital Hermanos Melendez, Inc.  (24-RC-090556) Bayamon, PR, April 26, 2013.  Finding no merit in the union’s exceptions alleging that the hospital’s head nurses were statutory supervisors because they had the authority to responsibly direct and discipline fellow employees, the Board adopted the hearing officer’s findings and recommendations and directed the Regional Director to open and count the ballots of twelve contested employees and to issue a revised tally of ballots.  Petitioner – Union General de Trabajadores, Local 1199, SEIU.  Chairman Pearce and Members Griffin and Block participated.

C Cases

International Union of Operating Engineers, Local 18 (Bowen Engineering Group)  (09‑CB‑092868) Dayton, OH, April 22, 2013.  Order denying the petition of International Union of Operating Engineers, Local 18 to revoke subpoenas duces tecum.  Charge filed by an individual.  Chairman Pearce and Member Block participated.  Member Griffin recused himself and took no part in the consideration of this case.

Mountain View Country Club  (21-CA-096601) La Quinta, CA, April 22, 2013.  Order denying the petition to revoke subpoena duces tecum filed by Mountain View Country Club.  Charge filed by Laborers Pacific Southwest Regional Organizing Coalition, Laborers’ International Union of North America.  Chairman Pearce and Members Griffin and Block participated.

E & A Protective Services-Bravo, LLC  (26-CA-091325, et al.) Memphis, TN, April 22, 2013.  Order denying the employer’s partial petition to revoke subpoena duces tecum.  Charges filed by individuals.  Chairman Pearce and Members Griffin and Block participated.

United States Postal Service  (13-CA-062320, et al.) Chicago, IL, April 23, 2013.  Order approving a formal settlement stipulation between the parties and specifying actions the employer must take to comply with the National Labor Relations Act.  Charges filed by National Association of Letter Carriers Branch No. 11.  Chairman Pearce and Members Griffin and Block participate.

Cincinnati Bell Telephone Company  (09-CA-088578) Cincinnati, OH, April 25, 2013.  With no exceptions having been filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and ordered the respondent to take the recommended action.  Charge filed by Communications Workers of America, Local 4400, AFL-CIO/CLC.

Kings Material Handling Corp.  (29-CA-083190) Brooklyn, NY, April 25, 2013.  With no exceptions having been filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and ordered the respondent to take the recommended action.  Charges filed by International Brotherhood of Teamsters, Local 1205.

Flex Frac Logistics LLC and Silver Eagle Logistics LLC, joint employers  (16‑CA‑027978) Fort Worth, TX, April 25, 2013.  Order denying the Acting General Counsel’s motion to strike the respondent’s answering brief for failure to comply with Section 102.46(d)(2) of the Board’s Rules and Regulations.  Charge filed by an individual.

United States Postal Service  (15-CA-093761) New Orleans, LA, April 26, 2013.  Order approving a formal settlement stipulation between the parties and specifying actions the employer must take to comply with the National Labor Relations Act.  Charge filed by National Association of Letter Carriers, Local 124.  Chairman Pearce and Members Griffin and Block participated.

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Appellate Court Decisions

Flagstaff Medical Center, Board Case No. 28-CA-021509 (reported at 357 NLRB No. 65) (D.C. Cir. decided April 26, 2013)

In a published decision in this case involving threats and discipline during a 2007 organizing campaign at an Arizona hospital, the Court reversed two of the Board’s unfair labor practice findings and enforced a third. 

Petition Granted, Enforcement Denied:

1.  Threat Not To Bargain With the Union.  During a meeting with employees, the Hospital’s president remarked that “if there was a union, ‘I would not be negotiating with the union,’ or ‘you won’t be negotiating with me.’”  The Board found this unlawful under Section 8(a)(1) of the Act because employees would reasonably construe it as a threat that unionization would be futile.  The Court, however, was convinced that the president only intended to convey that he would not be personally negotiating with the union, citing other record testimony showing that the president conveyed to employees that there would indeed be negotiations.

2.  Discharge of Button-Wearing Union Supporter for Absenteeism.  Employee M.C. wore a union button in July 2007, and the Hospital fired him for absenteeism in August.  Although he was indisputably eligible for termination under the Hospital’s absenteeism policy at the time of his discharge, he was also eligible for discharge before he wore the button and the Hospital did nothing.  On these facts, the Board concluded that the Hospital terminated M.C. for his union support, not his absenteeism.  The Court, however, accepted the Hospital’s explanation for the delay:  “in mid-June, the director of the housekeeping department [where M.C. worked] stepped down and an interim director . . . took over.”  Because the interim director, according to the Court, acted promptly once he discovered M.C.’s absenteeism, the Board’s inference of animus did not hold water, under the Court’s view.  The Court rejected the Board’s attempt to impute the Hospital’s general animus to the interim director.

Enforcement Granted, Review Denied:

Retaliatory Schedule Change To Punish an Employee’s Appearance in a Prounion Advertisement.  Dishwasher L.G. worked for the Hospital for over 10 years, and appeared in a newspaper ad for the union on May 26, 2007.  Immediately thereafter, the Hospital assigned L.G. to an “unusual number” of weekend shifts for the month of June.  The Board concluded, based on the Hospital’s general anti-union animus and the schedule change’s suspicious timing, that L.G.’s schedule change was unlawfully motivated.  The Court agreed.  Although the Hospital claimed that documentary evidence demonstrated that it issued the June schedule before L.G.’s appearance in the ad, it had never raised that purported anomaly to the Board, and therefore could not rely on it before the Court.  “The Board deemed the June schedule very unusual precisely because [the Hospital] never contested the ALJ’s finding to that effect.” 

The Court’s published opinion is available here.

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Administrative Law Judge Decisions

DHL Express (USA), Inc.  (09-CA-079842, et al., JD-27-13) Erlanger, KY.  Charges filed by American Postal Workers Union, AFL-CIO and American Postal Workers Union, Cincinnati Area, Local 164.  Administrative Law Judge Mark Carissimi issued his decision on April 22, 2013.

NACCO Material Handling Group, Inc.  (25-CA-083948, JD‑26‑13) Danville, IL.  Charge filed by Independent Lift Truck Builders Union.  Administrative Law Judge Christine E. Dibble issued her decision on April 24, 2013.

C & G Distributing, Co., Inc.  (08-CA-091304, JD-29-13) Lima, OH.  Charge filed by Truck Drivers, Warehousemen and Helpers, Local 908, a/w International Brotherhood of Teamsters.  Administrative Law Judge Eric M. Fine issued his decision on April 24, 2013.

Ozburn-Hessey Logistics, LLC  (26-CA-070471, et al., JD(ATL)‑09‑13) Brentwood, TN.  Charges filed by United Steel Workers Union.  Administrative Law Judge Margaret G. Brakebusch issued her decision on April 26, 2013.

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