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Summary of NLRB Decisions for Week of April 29 - May 3, 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

Bloomingdale’s Inc.  (31-CA-071281, 359 NLRB No. 113) Sherman Oaks, CA, April 30, 2013.

In a published order, the Board denied the respondent’s motion to dismiss the complaint on the ground that it was barred by the Board’s alleged lack of a quorum under Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013).  Specifically, the respondent contended that under the National Labor Relations Act (NLRA), all actions of the Board, including those of its appointees, agents, and delegatees, are void ab initio when the Board acts in the absence of three validly appointed members.  The Board held that the respondent had failed to establish that it was entitled to judgment as a matter of law.

The Board recognized that the United States Court of Appeals for the District of Columbia Circuit had concluded that the President’s recess appointments were not valid.  See Noel Canning v. NLRB, supra.  The Board noted, however, that the court itself acknowledged that its decision conflicted with rulings of at least three other courts of appeals.  See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005); U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962).  The Board stated that this question remains in litigation, and pending a definitive resolution, the Board is charged to fulfill its responsibilities under the Act.  See Sub-Acute Rehabilitation Center at Kearny d/b/a Belgrove Post Acute Care Center, 359 NLRB No. 77, slip op. 1, fn.1 (2013).

The Board further held that to the extent that the respondent was suggesting that the Acting General Counsel lacked the power to investigate and prosecute charges of unfair labor practices in the absence of a Board quorum, this argument is meritless.  The Board referred to the fact that under the NLRA, the General Counsel is an independent officer appointed by the President and confirmed by the Senate, and staff engaged in the investigation and prosecution of unfair labor practices are directly accountable to the General Counsel.  See 29 U.S.C. Sec. 153(d); NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 127-28 (1987); NLRB v. FLRA, 613 F.3d 275, 278 (D.C. Cir. 2010).  The Board stated in conclusion that the authority of the General Counsel to investigate unfair labor practice charges and prosecute complaints derives not from any “power delegated” by the Board, but rather directly from the language of the NLRA. 

Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

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Woodman’s Food Market, Inc.  (30-CA-078663, 359 NLRB No. 114) Appleton, WI, April 30, 2013.

The Board adopted the administrative law judge’s conclusion that the respondent violated Section 8(a)(5) of the Act when, through an employee acting as its agent under Section 2(13), it solicited employees to withdraw their support for the union, and when it thereafter withdrew recognition from and refused to bargain with the union. The Board found it unnecessary to pass on the judge’s findings regarding the supervisory status of the employee in question under Section 2(11).

Charge filed by United Food and Commercial Workers Union, Local 1473. Administrative Law Judge Jeffrey D. Wedekind issued his decision on October 5, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Target Corporation  (29-CA-030804, et al., 359 NLRB No. 103) Valley Stream, NY, April 30, 2013.

This is a consolidated unfair labor practice charge and representation case arising out of the charging party union’s effort to organize the employer’s Valley Stream, New York store.   Affirming the administrative law judge, the Board found that the employer violated Section 8(a)(1) of the Act by maintaining and, in some instances, enforcing unlawful confidential information, no-solicitation/no-distribution, and off-duty access and dress code policies.  The Board, however, reversed the judge’s ruling that the employer’s parking lot policy was unlawful.  The Board also  adopted the judge’s findings that the employer had engaged in campaign conduct that was in violation of Section 8(a)(1), including a threat to close the store, impression of surveillance, improper interrogation, threats of discipline, and unspecified reprisals.  In light of the relevant violations, the Board concurred with the judge’s decision to overturn the election results and to direct a new election.  Further, the Board ordered, among other remedies, that the employer revise the unlawful policies as they apply to all stores nationwide.

Charges filed by United Food & Commercial Workers, Local 1500.  Administrative Law Judge Steven Davis issued his decision on May 18, 2012.  Chairman Pearce and Members Griffin and Block participated.    

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Venue Trading Co. d/b/a Trade Show Supply  (12-CA-074022, 359 NLRB No. 106) Orlando, FL, April 30, 2013.

The Board found that the employer violated the Act by failing to provide the union with requested information about the employer’s “staff employees.”  The Board agreed with the administrative law judge that the union established the relevance of the requested information.  The Board therefore found it unnecessary to pass on whether the staff employees are included in the unit and whether the requested information about them would thereby be presumptively relevant.  The Board also found it unnecessary to pass on the judge’s finding that the parties’ relationship was governed by Section 8(f) of the Act, rather than Section 9(a), because a violation would be found in either event.  In addition, the Board deleted the word “limited” from the Conclusions of Law, Order, and notice that referred to the union as the employees’ “limited” exclusive collective-bargaining representative. The Board stated that referring to the union’s representational status as “limited” is erroneous because during the term of a collective-bargaining agreement established under Section 8(f), the union is the employees’ exclusive collective-bargaining representative, plain and simple.

In addition, the Board modified the judge’s unit description to better conform to the parties’ collective-bargaining agreement, and added a footnote stating that while the Board agreed with the judge that the relevance of the union’s information request did not depend on the merits of a potential grievance or arbitration, the Board did not express any opinion on the merits of any potential grievance or arbitration in this case. 

Charge filed by International Alliance of Theatrical Stage Employees, Local 835, AFL-CIO.  Administrative Law Judge Robert A. Ringler issued his decision on September 20, 2012.  Chairman Pearce and Members Griffin and Block participated.

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G4S Regulated Security Solutions, a division of G4S Secure Solutions (USA) Inc., f/k/a The Wackenhut Corporation  (12‑CA‑026644, et al., 359 NLRB No. 101) Miami-Dade County, FL, April 30, 2013.

In this supplemental decision, the Board adopted the administrative law judge’s findings that the respondent violated the Act by discharging two employees because of their concerted protected activity, and found that the respondent also violated the Act by suspending each employee before it discharged him. In the underlying decision, the Board reversed the judge’s findings that the two employees were statutory supervisors, and remanded the case to the judge to determine whether, given that they were statutory employees, their discharges violated the Act.

Charges filed by individuals.  Administrative Law Judge William N. Cates issued his decision on November 16, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Teamsters, Local 20  (08-CD-086589, 359 NLRB No. 107) Toledo, OH, April 30, 2013.

Having found that this jurisdictional dispute was properly before the Board for determination under Section 10(k) of the Act, the Board awarded the work in dispute to employees represented by International Longshoremen’s Association, Local 1982 and Teamsters, Local 20. 

Charge filed by Midwest Terminals of Toledo International, Inc. and International Longshoremen’s Association, Local 1982.  Hearing Officer Gina Fraternali issued her report on October 26, 2012.  Chairman Pearce and Members Griffin and Block participated.

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BCI Coca-Cola Bottling Company of Los Angeles  (28-CA-022792, 359 NLRB No. 110) Tempe, AZ, April 30, 2013.

The Board remanded this case to the administrative law judge with instructions to hold an evidentiary hearing to determine whether the settlement agreement between the parties, purporting to resolve an unlawful discharge allegation, is repugnant to the Act under Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984).  The Board also instructed the judge to decide the complaint allegations that the respondent violated Section 8(a)(1) of the Act by making threats of futility, layoffs, and other unspecified reprisals, which were not covered by the settlement agreement.

Charge filed by an individual.  Administrative Law Judge William G. Kocol issued a bench decision on September 28, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Dish Network Corp.  (16-CA-062433, et al., 359 NLRB No. 108) Farmer’s Branch, TX, April 30, 2013.

The Board adopted the administrative law judge’s findings that the respondent did not violate Section 8(a)(3), (4), and (1) of the Act by disciplining and discharging an employee technician. The Board also adopted, in the absence of exceptions, the judge’s findings that the respondent violated Section 8(a)(1) by maintaining certain handbook rules. 

Charges filed by Communication Workers of America Local 6171 and an individual.  Administrative Law Judge Robert A. Ringler issued his decision on November 14, 2012.  Chairman Pearce and Members Griffin and Block participated. 

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Veritas Health Services, Inc. d/b/a Chino Valley Medical Center  (31-CA-029713, et al., 359 NLRB No. 111) Chino Valley, CA, April 30, 2013.

In this case, the Board adopted the administrative law judge’s findings that the respondent committed various unfair labor practices both before and after the election, violating Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the Act.  The Board also found it unnecessary to pass on the Acting General Counsel’s exception to the judge’s failure to find that the respondent violated Section 8(a)(1) by threatening employees with discipline.

Charges filed by United Nurses Associations of California/Union of Healthcare Professionals, NUHHCE, AFCME, AFL-CIO.  Administrative Law Judge William G. Kocol issued his decision on October 17, 2011.  Chairman Pearce and Members Griffin and Block participated.

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New York Party Shuttle, LLC  (02-CA-073340, 359 NLRB No. 112) New York, NY, May 2, 2013.

The Board adopted the administrative law judge’s finding that the respondent violated Section 8(a)(3) and (1) of the Act when it discharged an employee because of his union activity. In reaching that conclusion the Board did not rely on the judge’s additional finding that the respondent believed that the employee, if he resumed working in 2012, would try to convince the other employees to unionize.  Inasmuch as it affirmed the judge’s finding that the respondent’s discharge of the employee for his union activity violated Section 8(a)(3), and Section 8(a)(1) derivatively, the Board found it unnecessary to pass on the Acting General Counsel’s cross-exception to the judge’s failure to find that the discharge independently violated Section 8(a)(1).

Charge filed by an individual.  Administrative Law Judge Raymond P. Green issued his decision on September 19, 2012.  Chairman Pearce and Members Griffin and Block participated.

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 Ozburn-Hessey Logistics, LLC  (26-CA-024057, et al., 359 NLRB No. 109) Memphis, TN, May 2, 2013.

The Board adopted the administrative law judge’s findings that the respondent violated Section 8(a)(3) of the Act by discharging an employee and disciplining an employee; and violated Section 8(a)(1) by unlawfully confiscating union materials, urging union supporters to quit, conducting surveillance of protected activity, creating an impression of surveillance, interrogating employees about their protected activity, and threatening employees.  In addition, the Board adopted the judge’s recommendations to reject the employer’s objections to an election which the union won by a single vote, to uphold several of the union’s objections based on the employer’s post-petition misconduct, and to count six outstanding challenged ballots.  The Board, accordingly, directed the Regional Director to certify the union if the revised tally of ballots showed that the union retained its majority, and if not to conduct a rerun election. 

Charges filed by the United Steelworkers Union.  Administrative Law Judge Robert A. Ringler issued his decision on May 15, 2012.   Chairman Pearce and Members Griffin and Block participated.

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U.S. Postal Service  (24-CA-010805, 359 NLRB No. 115) San Juan, PR, May 2, 2013.

Upon remand from the United States Court of Appeals for the First Circuit, the Board, applying the law of the case as directed, reaffirmed its finding that the Postal Service violated Section 8(a)(5) and (1) of the Act by refusing to furnish the union with unit employees’ aptitude test scores.  The Board found that the union’s need for that information to police the collective-bargaining agreement’s seniority clause outweighed the employees’ privacy interests.  However, the Board devised a remedy that it found would fully satisfy the employees’ confidentiality concerns while providing the union with the necessary information.  Specifically, it ordered the Postal Service to furnish the test scores in a manner that does not link an individual employee with his or her test score.

Charges filed by National Postal Mailhandlers’ Union, Local 313, NPMHU.  The United States Court of Appeals for the First Circuit issued its decision remanding the case to the Board on October 27, 2011.  Chairman Pearce and Members Griffin and Block participated.

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New NGC, Inc. d/b/a National Gypsum Company  (25-CA-031825, et al., 359 NLRB No. 116) Shoals, IN, May 3, 2013.

The Board unanimously adopted the administrative law judge’s finding that the respondent, a gypsum mining and plaster plant, did not violate Section 8(a)(5) of the Act when it declared impasse, refused to bargain with the union, and locked out workers.  The Board found that, in light of the union’s attempts to induce the respondent to move from its position on retirement proposals, and an international union representative’s unambiguous statement that the union would not accept those proposals, the parties were at a lawful impasse when the respondent declared impasse and refused to continue bargaining despite having made recent progress on several other proposals.

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), AFL-CIO, CLC and United Steelworkers, Local 7‑0354, a/w United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service workers International Union (USW), AFL-CIO, CLC.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on September 7, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Laborers’ International Union of North America, Local 872, AFL-CIO  (28‑CB‑065507, 359 NLRB No. 117) Las Vegas, NV, May 3, 2013.

The Board adopted the administrative law judge’s findings that the respondent union did not violate Sections 8(b)(1) or 8(b)(2) of the Act when it ejected the charging party from its hiring hall and effectuated her removal from its property by the police for creating a disturbance.  The Board found that the totality of the employee’s conduct on the premises – swearing, continued screaming, and repeatedly refusing to leave the property – justified her removal.  The Board did not adopt the judge’s finding that the respondent subsequently violated the Act or its duty of fair representation by failing to take affirmative steps to remove a requirement imposed by the local police that the employee be accompanied by a police escort on future visits to the hiring hall.  The Board found that the escort requirement was a direct consequence of the respondent’s lawful removal of the employee, that the employee made no clear commitment not to behave in a similar manner in the future, that the employee never asked the respondent for help in ending the escort requirement, and that the requirement was not shown to have impaired the employee’s employment.  The Board, accordingly, dismissed the complaint.

Charge filed by an individual.  Administrative Law Judge Gerald M. Etchingham issued his decision on May 18, 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

Fordham Hill Owners Corporation  (02-RC-098661) Bronx, NY, April 29, 2013.  Decision and order denying the employer’s request for review of the Regional Director’s decision and direction of election.  The Board rejected the employer’s arguments that the Board lacked a quorum and that the Regional Director lacked the authority to process representation petitions if the Board lacked a quorum.  Petitioner – United Federation of Special Police and Security Officers, Inc.  Chairman Pearce and Members Griffin and Block participated.

Mission Produce, Inc.  (10-RC-095843) Atlanta, GA, April 29, 2013.  Finding no merit in the employer’s exceptions, the Board adopted the Regional Director’s findings and found that a certification of representative should be issued.  The Board rejected the employer’s arguments that the Board lacked a quorum and that the Regional Director lacked the authority to process representation petitions if the Board lacked a quorum.  Petitioner – Retail Wholesale and Department Store Union Southeast Council/UFCW.  Chairman Pearce and Members Griffin and Block participated.

Astor Services for Children & Families  (03-RC-098696) Rhinebeck, NY, April 30, 2013.  Order denying the employer’s request for review of the Acting Regional Director’s decision and direction of election.  Petitioner – Astor Residential Staff Association, NYSUT, NEA, AFT, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

C Cases

Titan Tire Corporation of Bryan and Titan Corporation of Freeport  (13‑CA‑046757) Des Moines, IA, April 9, 2013.  Order granting the Acting General Counsel’s motion to remand case to the Regional Director to approve the charging party union’s withdrawal request.  Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.

Big Moose, LLC  (15-CA-019735, et al.) New Orleans, LA, April 30, 2013.  With no exceptions having been filed, the Board adopted the findings, conclusions, and recommendation of the administrative law judge.  Accordingly, the complaint was dismissed insofar as it alleged violations of the Act with respect to the charging party’s April 28, 2010 termination of employment.  Charges filed by an individual.

District Council 91, International Union of Painters and Allied Trades, AFL-CIO, and its affiliated International Union of Painters and Allied Trades Northwest Indiana, Local 460  (13‑CB‑082856) Whiting, IN, April 30, 2013.  With no exceptions having been filed, the Board adopted the findings, conclusions, and recommendation of the administrative law judge to dismiss the complaint.  Charge filed by an individual.

Road Sprinkler Fitters, Local 669, U.A., AFL-CIO  (27‑CC‑091349) Salt Lake City, UT, April 30, 2013.  Order denying the respondent’s motion for summary judgment.  Charge filed by Firetrol Protection Systems, Inc.  Chairman Pearce and Members Griffin and Block participated.

DHSC, LLC, d/b/a Affinity Medical Center  (08-CA-090083, et al.) Massillon, OH, April 30, 2013.  Order denying the movants’ request for special permission to appeal the deputy chief administrative law judge’s order denying their motion to intervene.  The Board found that the movants had failed to establish that the judge abused his discretion in denying the motion.  Charge filed by National Nurses Organizing Committee.  Chairman Pearce and Members Griffin and Block participated.

Veritas Health Care Services, Inc. d/b/a Chino Valley Medical Center  (31‑CA‑091701) Chino, CA, April 30, 2013.  Order denying the respondent’s motion to dismiss complaint.  Charge filed by United Nurses Association of California/Union of Healthcare Professionals, NUHHCE, AFSCME, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated. 

New Jersey State Opera  (22-CA-029526) Newark, NJ, May 1, 2013.  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 American Federation of Musicians, Local 16.

Park Avenue Investments, LLC, and Hotel Management Advisors – Troy, LLC d/b/a The Metropolitan Group and The Metro Hotel  – Troy single employer and/or alter egos  (07‑CA‑090297) Troy, MI, May 1, 2013.  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 Local 24, UNITE HERE!, AFL-CIO.

Federal Signal Corporation  (13-CA-084282, et al.) University Park, IL, May 2, 2013.  With no exceptions having been filed, the Board adopted the findings, conclusions, and recommendation of the administrative law judge and ordered the respondent to take the recommended action.  Charges filed by an individual.

Greenheck Fan Corporation  (30-CA-087881) Schofield, IL, May 2, 2013.  With no exceptions having been filed, the Board adopted the findings, conclusions, and recommendation of the administrative law judge and ordered that the respondent take the recommended action.  Charge filed by an individual.

Gunderson Rail Services, LLC d/b/a Greenbrier Rail Services  (28‑CA‑093183) Tucson, AZ, May 3, 2013.  Order denying the employer’s petition to revoke subpoena duces tecum.  Charge filed by Sheet Metal Workers’ International Association, Local 359, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

Greenbrier VMA, LLC d/b/a Greenbrier Valley Medical Center  (10‑CA‑094646) Ronceverte, WV, May 3, 2013.  Order denying the employer’s petition to revoke subpoenas duces tecum.  Charge filed by National Nurses Organizing Committee.  Chairman Pearce and Members Griffin and Block participated.

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Appellate Court Decisions

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

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Administrative Law Judge Decisions

Western Refining Wholesale, Inc. an affiliate of Western Refining, Inc.  (28‑CA‑067703, et al., JD(SF)‑16‑13) Albuquerque, NM.  Charges filed by Chauffeurs, Teamsters and Helpers, Local 492, International Brotherhood of Teamsters.  Administrative Law Judge John J. McCarrick issued his decision on April 29, 2013.

Ralphs Grocery Company  (21-CA-039867, JD(SF)-19-13) Irvine, CA.  Charge filed by United Food and Commercial Workers Union, Local 324.  Administrative Law Judge Jeffery D. Wedekind issued his decision on April 30, 2013.

St. Bernard Hospital and Health Care Center  (13‑CA‑074311, JD‑30‑13) Chicago, IL.  Charge filed by an individual.  Administrative Law Judge Melissa M. Olivero issued her decision on April 30, 2013.

Oak Terrace Healthcare Center, Inc.  (25-CA-089819, JD-31-13) Springfield, IL.  Charge filed by an individual.  Administrative Law Judge Bruce D. Rosenstein issued his decision on April 30, 2013.

All Service Plumbing and Maintenance, Inc.  (15-CA-019433, et al., JD‑33‑13) Baton Rouge, LA.  Charges filed by United Association of Journeyman and Apprentices of the Plumbing Industry of the United States and Canada, Local 198.  Administrative Law Judge Michael A. Rosas issued his decision on May 2, 2013.

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