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Summary of NLRB Decisions for Week of April 30 - May 4, 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

Relco Locomotives, Inc. (18‑CA‑019720, et al.; 358 NLRB No. 37) Albia, IA, April 30, 2012.

The Board agreed with the administrative law judge’s finding that the employer violated the Act by disciplining and discharging two employees who engaged in union activity and gave testimony in an unfair labor practice hearing.  The Board also adopted the judge’s finding that the employer violated the Act by terminating two additional employees because they engaged in protected concerted activity.

Charges filed by individuals.  Administrative Law Judge Geoffrey Carter issued his decision on October 19, 2011.  Chairman Pearce and Members Griffin and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Case

Monongahela Power Company (06-RC-075606) Gassaway, WV, May 1, 2012.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – International Brotherhood of Electrical Workers, Local 2357, AFL-CIO, CLC.  Members Hayes, Griffin, and Block participated.

C Cases

Nipcam Services Delmarva, LLC (11-CA-061485, et al.) Watkinsville, GA, April 30, 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 individuals.

Greenwood 2, Inc., Rainbow Transport Corporation, Nicholas J, LLC, Marky O G, LLC, John Farnsworth (22-CA-029249) Ledgewood, NJ, April 30, 2012.  Order remanding the proceeding to the administrative law judge.  Charge filed by Building Materials Teamsters, Local 282.  Members Hayes, Griffin, and Flynn participated.

Reedman-Toll, L.P. (04-CA-036331) Langhorne, PA, April 30, 2012.  Decision and order pursuant to a settlement stipulation.  Charge filed by International Brotherhood of Teamsters, Local 628, CTW.  Chairman Pearce and Members Flynn and Block participated.

Cactus Bay Apparel, Inc. (28-CA-068006, et al.) Phoenix, AZ, April 30, 2012.  Decision and order pursuant to a settlement stipulation.  Charges filed by United Food and Commercial Workers Union, Local 99, AFL‑CIO.  Chairman Pearce and Members Flynn and Block participated.

Sunrise Mountainview Hospital, Inc. d/b/a Mountainview Hospital (28‑CA‑023100) Las Vegas, May 1, 2012.  Order denying motion for reconsideration.  Charge filed by California Nurses’ Association/National Nurses Organizing Committee (CNA/NNOC).  Chairman Pearce and Members Hayes and Griffin participated.

Entergy Mississippi Inc. (15-CA-017213, et al.) Jackson, MS, May 3, 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 International Brotherhood of Electrical Workers, Local 985, AFL-CIO-CLC.

Meredith Corporation (17-CA-077657) Fairway, KS, May 3, 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 American Federation of Television and Radio Artists (AFTRA) Kansas City Local.

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Appellate Court Decisions

San Luis Trucking, Inc., Board Case No. 28-CA-20387 (reported at 356 NLRB No. 36) (9th Cir. decided May 1, 2012)

In an unpublished memorandum decision, the Court enforced the Board’s order.  The Board had found that the employer was a single employer comprised of three separate entities, a grocery store chain, a U.S. trucking company, and a Mexican trucking company.  When employees of the U.S. trucking company attempted to organize, the employer subcontracted that work.  The Court enforced the Board's finding that the subcontracting was unlawfully discriminatory.  Ultimately, the employer shuttered the entire U.S. trucking operation, another action the Board--and the Court--found unlawful because of its chilling effect on the employer's other entities.  The Board ordered the employer to restore the trucking operation, and the Court enforced that remedy, finding it "presumptively valid" to restore the status quo and observing that the employer will have an opportunity, in compliance, to show that restoration creates an "undue burden."

The Court also rejected the employer's claim that the administrative law judge was biased, and enforced a host of unchallenged unfair labor practice findings, including constructive discharges, speech restrictions, and interrogations. 

The Court's order is available here.

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Beacon Electric Co., Board Case No. 9-CA-35127 (reported at 350 NLRB No. 26) (6th Circuit decided May 4, 2012)

In an unpublished judgment opinion, the Court enforced the Board's 2007 order finding that Beacon unlawfully refused to hire or consider for hire 49 salts—applicants sent by IBEW Local 212 as part of an attempt to organize Beacon.  In justifying its refusal to hire those salts, Beacon claimed that it maintained a policy--not stated on the official policy posted on its office wall or ever told to any applicant--that it only employed applicants with a referral.  After several remands to apply FES, 331 NLRB 9 (2001), the Board ultimately found that Beacon had positions for which the applicants were qualified, failed to hire the 49 applicants because of antiunion animus, and proffered a pretextual reason for its failure to hire.  

Throughout, Beacon claimed that the applicants were not bona fide because they did not have a genuine interest in employment.  Three months after the Board's July 2007 decision, the Board issued Toering Electric Co., 351 NLRB 225 (2007), in which it modified FES to require the General Counsel to prove that very fact, and Beacon filed a motion for reconsideration with the Board.  On the motion for reconsideration, the Board declined to apply Toering retroactively, noting that its decision here followed existing law at the time of its issuance.  When Beacon would not comply with the order, the Board sought enforcement in the Sixth Circuit.  In enforcing the Board’s order, the Court concluded:

In short, the proceedings, record and decisions of the ALJ and Board are such that Beacon had an adequate opportunity to argue and prove that the salts were not bona fide applicants for employment, the ALJ actually considered the issue and found based on the evidence that the salts were unemployed and in fact sought employment...the evidence was adequate to support this affirmative finding, and the Board's decision that the record supports a violation of the Act is legally and factually sound.

Further, the Court concluded that it owed deference to the Board's formulation of tests in FESand Toering.

The Court's opinion is available here

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Decisions of Administrative Law Judges

No Administrative Law Judge decisions were issued this week.

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