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Summary of NLRB Decisions for the Week of April 25-29, 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.

 

Summarized Board Decisions

 

Bally’s Park Place, Inc. d/b/a Bally’s Atlantic City(04-CA-36109 et al.; 356 NLRB No. 140) Atlantic City, NJ, April 26, 2011.

Test of Certification: The Board granted the Acting General Counsel’s motion for summary judgment in this unfair labor practice case, finding that Respondent unlawfully refused to bargain with the Union.  This case originally was decided by two Board Members and was remanded by the court of appeals for further proceedings after the Supreme Court ruled that a group of at least three members must decide cases.  Respondent admitted its refusal to bargain but challenged the validity of the Union’s certification on the basis of its objections to the election in the representation proceeding (which cannot be re-litigated at this time), and based upon certain arguments raised for the first time in this proceeding.  Respondent argued that the Board violated its due process rights by deciding the case too quickly after the court of appeals remanded the case to the Board.  The Board rejected this argument, noting that the Board was aware that it would need to revisit this case long before the court of appeals acted, and it was prepared to act promptly thereafter.

Chairman Liebman and Members Becker and Pearce participated. 

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Holdings Acquisition Co. L.P. d/b/a Rivers Casino(06-RC-12701; 356 NLRB No. 142) Pittsburgh, PA, April 26, 2011.

The Board reversed the hearing officer and found that the Employer engaged in objectionable conduct including: (1) banning the circulation of union materials, (2) engaging in an instance of surveillance, (3) banning the display of union buttons, and (4) granting of benefit on election day.  Based on the objectionable conduct found, the Board overturned the results of the election and ordered that a second election be held.  

The hearing officer’s decision issued on January 13, 2010.  Objections were filed by International Union, Security, Police, and Fire Professionals of America (SPFPA).  Chairman Liebman and Members Becker and Pearce participated. 

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Sikorsky Support Service, Inc. d/b/a Sikorsky Aerospace Maintenance(15-CA-19692; 356 NLR No. 144) Fort Rucker, AL, April 27, 2011.

The Board adopted the judge’s findings that the Respondent violated Section 8(1) of the Act by interrogating its employees, soliciting grievances, and promising unspecified benefits and Sections 8(a)(5) and (1) by unilaterally issuing a written job description and job duties for a bargaining unit position.  The Board modified the judge’s recommended remedy by providing electronic notice posting and substituting a limited bargaining order. 

The charge was filed by the International Association of Machinists and Aerospace Workers, AFL-CIO.  Administrative Law Judge Margaret G. Brakebusch issued her decision on January 24, 2011.  Chairman Liebman and Members Pearce and Hayes participated.

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RegencyGrande Nursing & Rehabilitation Center(22-CA-29318; 356 NLRB No. 146) Dover, NJ, April 28, 2011.

Test of Certification: The Board granted the Acting General Counsel’s motion for summary judgment in this unfair labor practice case, finding that the Respondent unlawfully refused to bargain with the Union.  This case originally was decided by two Board Members, but that decision was set aside and the case was returned to the Board for further proceedings after the Supreme Court ruled that a group of at least three members must decide cases.  The Respondent denied that it had refused to bargain with the Union, but the Board found that no hearing was needed on this issue, because the Respondent did not argue that it has or was prepared to recognize and bargain with the Union.  In addition, Board rejected the Respondent’s argument that the Union’s certification was not valid because Member Becker should not have participated in deciding this case.

Chairman Liebman and Members Becker and Hayes participated.

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Fresh & Easy Neighborhood Market Inc.(28-CA-22520 et al.; 356 NLRB No. 145) Las Vegas, NV, April 28, 2011.

The Board granted the Charging Party Union’s motion for reconsideration with respect to the Board’s remedial order and its requirement for the posting of notices.   The Board revised its original order to more clearly express its intent, which was (1) to require a notice of a corporatewide violation to be posted in all of the Respondent’s stores located outside Las Vegas (where the charges for that and other local violations were filed); and 2) to require the corporatewide notice to be mailed to the respective former employees of any of those stores that might have closed after the underlying charges were filed.  The Board noted that even assuming that the Union’s reference in its motion to closed stores was procedurally improper, as the Respondent argued, the Board was not barred from correcting the terms of its order to better express its remedial intent.  Member Hayes did not join in the requirement that the Respondent mail the corporatewide notice to former employees of closed stores.  The Board issued its original decision, 356 NLRB No. 85, on January 31, 2011.  The original charges were filed by the United Food and Commercial Workers and employee Deana Kenton.

Chairman Liebman and Members Becker and Hayes participated.

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Metro Mayaguez, Inc. d/b/a Hospital Perea(24-CA-11016 et al.; 356 NLRB 150) Mayaguez, PR, April 29, 2011.

The Board adopted the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing terms and conditions of employment of its unit employees regarding overtime pay and on-call shift assignments.  The Board dismissed, however, the allegation that the Respondent unlawfully unilaterally discontinued a bonus for working New Year’s Eve.  Rather, the Board approved the parties’ non-Board settlement of this issue, by which the Respondent fully paid the bonus prior to the hearing in accord with the settlement.  The Board found that its longstanding policy encouraging the amicable resolution of disputes without litigation is served by approving the settlement, observing that the parties’ agreement to settle may be viewed as an ameliorative step in their bargaining relationship and efforts to reach a new contract.  Member Pearce, dissenting on this point, would not approve the settlement, deeming the Respondent a recidivist that previously made unilateral changes that were the subject of a prior Board decision.

Finally, the Board unanimously found, contrary to the judge, that a broad remedial cease-and-desist order is not warranted in this case.  The Board deemed this issue a close one, in view of the Respondent’s history of repeated unilateral implementation on important issues in violation of Section 8(a)(5).  The Board observed, however, that of the two unlawful changes the Respondent committed in this case, the Respondent continued to bargain with the Union on both issues, first rescinding one of the changes until an agreement could be reached, and ultimately reaching agreement on both issues.  The Board further observed that, following the prior case, the Respondent met frequently with the Union in bargaining and reached agreement on many issues.  The Board thus concluded that the Respondent’s conduct has not demonstrated a general disregard for the employees’ rights sufficient to warrant imposition of a broad remedial order.

Administrative Law Judge Michael A. Rosas issued his decision January 19, 2010.  Chairman Liebman and Members Becker and Pearce participated.

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Kadouri International Foods, Inc.(29-CA-30342; 356 NLRB No. 148) Brooklyn, NY, April 29, 2011.

In Kadouri International Foods, Inc., the Board adopted the administrative law judge’s finding that the Respondent violated Sections 8(a)(5) and (1) of the Act by failing to provide notice to the Union of its plant closing and failing to respond to the Union’s request for effects bargaining. 

Member Hayes noted that in accord with the dissenting view of former Member Jenkins in Transmarine Navigation Corp., 170 NLRB 389, 391 (1968), he would delete that portion of the judge’s remedy requiring that the minimum backpay due employees should not be less than 2 weeks pay, without regard to actual losses incurred.  Further, in accord with NLRB v. Waymouth Farms, Inc., 172 F.3d 598, 600-601 (8th Cir. 1999), Member Hayes would limit the remedy only to those employees who were adversely affected by the Respondent’s unlawful action.

Chairman Liebman and Members Pearce and Hayes participated.

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LakelandHealth Care Associates, LLC d/b/a Wedgewood Healthcare Center(12-CA-27044; 356 NLRB No. 147) Lakeland, FL, April 29, 2011.

Test of Certification: The Board granted the Acting General Counsel’s motion for summary judgment in this unfair labor practice case on the ground that the respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the union was certified as the bargaining representative.

Chairman Liebman and Members Becker and Hayes participated.

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Physicians & Surgeons Ambulance Service, Inc. d/b/a American Medical Response (08-CA-39333; 356 NLRB No. 149) Akron, Warrensville Heights and Cleveland, OH, April 29, 2011.

Test of Certification: The Board granted the Acting General Counsel’s motion for summary judgment in this unfair labor practice case on the ground that the respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the union was certified as the bargaining representative.

Chairman Liebman and Members Pearce and Hayes participated.

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Mental Health Association, Inc.(01-RC-22449; 356 NLRB No. 151) Springfield, MA, April 29, 2011.

Adopting the recommendations of the hearing officer, the Board majority sustained the Petitioner’s objections and directed a second election.  The Board found that the Employer’s statements regarding employee bonuses tended to interfere with employee free choice.  The Board also found that the Employer’s election day misconduct by itself was sufficient to overturn the election.  The Employer, without advanced notice, limited access to its facility to the employee entrance and gave control over that entrance to openly antiunion employees for a substantial portion of the voting period.  The Employer also hired security, erected a fence around part of its parking lot, and posted private property signs, all apparently without security justification.

The Petitioner also asked the Board to rescind its presumption in favor of holding an election on the employer’s premises and to replace it with a presumption in favor of holding an election at an appropriate neutral site, unless otherwise agreed to by the parties.  Alternatively, the Petitioner argued for a new rule requiring that any election overturned because of election-day misconduct, including this case, be re-run away from the employer’s premises.  Chairman Liebman and Member Pearce observed that, although this case illustrates some of the shortcomings of the Board’s current practices regarding the siting of elections, they were not prepared to deviate from the Board’s current practice at this time.

Petitioner—Service Employees International Union, Local 509.  Chairman Liebman and Member Pearce participated.  Member Hayes was a member of the panel, but did not participate in this decision on the merits.  Member Becker was recused.

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Camaco Lorain Manufacturing Plant  (08-CA-36785; 356 NLRB No. 143) Lorain, OH, April 29, 2011.

The Board found that the employer violated the Act by unlawfully interrogating two employees concerning their attendance at a union meeting and thereby, also unlawfully created the impression that the employer had placed those employees’ union activities under surveillance.  The Board further found that the employer unlawfully discharged another employee for engaging in the protected concerted activity of complaining to management on behalf of him and other employees about the workability of a production incentive program.  (The Board also affirmed, in the absence of exceptions, the ALJ’s finding the discharged employee had previously been unlawfully suspended because of his union activity.)  The Board ordered the employer to (1) cease and desist from unlawfully interrogating, appearing to surveil, suspending, and discharging employees because of union or protected concerted activity; (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 its files of any reference to the discharged employee’s unlawful suspension and termination and notify him in writing that it has done so; and (5) post a notice to employees. 

Administrative Law Judge Keltner W. Locke issued his supplemental decision September 28, 2009.  The charge was filed by the United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Region 2-B.  Chairman Liebman and Members Becker and Hayes participated.

 

Decisions of Administrative Law Judges

Wismarq Valencia, LLC, (06-CA-37082; JD-25-11) Valencia, PA. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC. Administrative Law Judge David I. Goldman issued his decision on April 26, 2011.

Newburg Eggs, Inc. (03-CA-27834 et al.; JD-(ATL)-13-11) Woodridge, NY. Charge filed by United Food and Commercial Workers, Local 342. Administrative Law Judge Robert A. Ringler issued his decision on April 27, 2011.

 

Appellate Court Decisions

No decisions involving the NLRB were issued by the Appellate Courts this week.

 

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Galaxy Condominium Association, Inc. (22-RC-13150) April 27, 2011. Decision and direction of second election.

Shiloh Services, Inc. (10-RD-01508) April 27, 2011. Order granting motion to withdraw.

Coca-Cola Enterprises, Inc. d/b/a Jackson Coca-Cola, Inc. (14-RC-12719) April 28, 2011. Decision and certification of results of election.

Mental Health Association, Inc. (01-RC-22449) April 28, 2011. Order granting motion to file amicus briefs.

DTG Operations, Inc. (27-RC-08629) April 29, 2011. Order granting request for review.

C Cases

Oasis Mechanical Contractors, Inc. (05-CA-36269) April 26, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before May 10, 2011.

Queen City Broadcasting of New York, Inc. (03-CA-27302, et al.) April 28, 2011. Order granting Respondent and Charging Party’s joint motion and remanding to the Regional Director for further appropriate action.

 

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