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Summary of NLRB Decisions for the Week of April 4-8, 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

Downtown Bid Services Corporation(05-CA-36375; 356 NLRB No. 130) Washington, DC, April 4, 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 Pearce participated.

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Pride Ambulance Company, d/b/a Pride Care Ambulance, Care-A-Van(07-CA-50741; 356 NLRB No. 128) Kalamazoo, MI, April 5, 2011.

The Board (Member Hayes dissenting) adopted the judge’s findings that the Respondent violated the Act by discharging employees because they engaged in an economic strike and by threatening to implement, unilaterally implementing, and dealing directly with employees regarding a 90-day waiting period for returning strikers to resume their health insurance coverage. The Board also adopted the judge’s findings that the Respondent violated the Act by discharging a nonunit employee for refusing to perform struck work, rendering assistance to employees in an effort to decertify the Union, and  maintaining a rule prohibiting discussion among employees of their wages.

Charges filed by Local 7, International Brotherhood of Teamsters.  Administrative Law Judge George Carson II issued his decision on May 8, 2008.  Chairman Liebman, Members Pearce, and Hayes participated.

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Alliance Mechanical Inc. (27-CA-21338; 356 NLRB No. 126) Eagle, CO, April 6, 2011.

The Board adopted the judge’s dismissal of the Section 8(a)(1) interrogation and threat and Section 8(a)(3) “refusal to hire” allegations.  In the absence of exceptions, the Board adopted the judge’s finding that the Respondent violated Section 8(a)(3) by failing and refusing to consider an applicant for hire.  The Board modified the judge’s recommended remedy by providing the standard remedy for “failure to consider” violations and by limiting the remedy to the only named discriminatee. 

The charge was filed by Road Sprinkler Fitters Local No. 699.  Administrative Law Judge James M. Kennedy issued his decision on July 23, 2010.  Chairman Liebman and Members Pearce and Hayes participated.

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C&G Heating and Air Conditioning Inc.(34-RC-02408; 356 NLRB No. 133) Torrington, CT, April 6, 2011.

The Board majority found “wholly baseless” the Employer’s exception to the Regional Director’s report finding that the presence of a Union representative in a vehicle parked on a public street near a garage entrance through which employees entered in order to vote was not objectionable conduct.  The representative was in that location during part of the polling period.  There was no evidence that the representative kept a list of employees entering or exiting the garage, that any employee entering the garage to vote saw or recognized the Union representative, or that the secrecy of the balloting was compromised.   The majority noted that the Employer’s exceptions merely cited the same four cases cited in the objection, which were clearly distinguishable from the facts presented because they involved conduct not alleged here.  Under existing Board precedent, endorsed by the Sixth Circuit, but not cited by the Employer,  the “[p]resence [of a union representative in the vicinity of the polls] alone, in the absence of evidence of coercion or other objectionable conduct, is insufficient to warrant setting aside an election.”  Member Hayes agreed with the Regional Director’s recommendation to overrule the objection, but found no need at this stage of Board proceedings to further characterize the relative strength, or lack thereof, in argument made and evidence adduced in support of the objections.

Chairman Liebman and Members Becker and Hayes participated.

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Hard Rock Holdings, LLC d/b/a Hard Rock Hotel and Casino (28-CA-23259; 356 NLRB No. 132) Las Vegas, NV, April 7, 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 Pearce participated.

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Star Fire Protection Inc. (12-CA-26646; 356 NLRB No. 131) Jacksonville, FL, April 7, 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.  The Board issued an Order requiring the respondent to recognize and bargain with the certified union, and to furnish the union with the information it requested that is relevant to its duties as the representative of the employees.

Chairman Liebman and Members Becker and Hayes participated.

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Eugene Iovine Inc. (29-CA-21052 et al.; 356 NLRB No. 134) Farmington, NY, April 7, 2011.

The Board adopted the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by laying off employees without providing the Union timely notice and an opportunity to bargain over the layoffs.

The Board rejected the Respondent’s affirmative defense that it was merely adhering to a consistent past practice of unilaterally implementing layoffs in response to work-or-weather-related delays on its construction projects.  The Board found that the Respondent, which bears the burden of proving the existence of its past practice, failed to present evidence showing when, how frequently, or under what circumstances its asserted past practice of unilateral layoffs occurred.  Absent such evidence, the Board concluded that the Respondent had not demonstrated that the challenged layoffs were permitted as a continuation of past practice.  The Board agreed with the judge that the Respondent may not establish a past practice defense privileging its unilateral conduct based on the acquiescence of a prior union that represented unit employees prior to the current union.

Administrative Law Judge David I. Goldman issued his supplemental decision on August. 31, 2006.  Chairman Liebman and Members Becker and Pearce participated.

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Decisions of Administrative Law Judges

TubeCity IMS, LLC (04-CA-37569; JD-21-11) Claymont, DE. Charge filed by International Union of Operating Engineers, Local 542, AFL-CIO. Administrative Law Judge Arthur J. Amchan issued his decision on April 5, 2011.

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LA Film School, LLC and its Branch LA Recording School, LLC (31-CA-29627 et al.; JD(ATL)-09-11). Charge filed by California Federation of Teachers and an individual. Administrative Law Judge Robert A. Ringler issued his decision on April 6, 2011.

Erratum issued April 8, 2011.

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Oshkosh Corporation (30-CA-18716; JD-22-11). Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on April 8, 2011.

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Sodexo America LLC (21-CA-39086; JD(SF)-08-11). Charges filed by an individual; Service Workers United; and National Union of Healthcare Workers.  Administrative Law Judge William G. Kocol issued his decision on April 8, 2011.

 

Appellate Court Decisions

 

Nelson v. NLRB (26-CA-23180& 5th Cir. 10-60762), April 5, 2011

In an unpublished opinion, the Fifth Circuit denied the charging party’s pro se petition for review of the Board's order dismissing a complaint alleging that the employer, Corrections Corporation of America, discharged her in retaliation for her protected concerted activity.  The Board's order incorporated a prior decision of the two-member Board, which had been fully briefed before the Court prior to New Process.

The Court held that substantial evidence supported the Board's finding that the employer terminated the charging party "after looking at her repeated pattern of abusive behavior” against coworkers, which took place in the context of the threatened loss of the employer’s contract to house inmates.  While the Court conceded that her “arguments could support an inference that the Corporation's stated reason for firing Nelson was pretextual,” it found that they did not “require such an inference." (emphasis in original). 

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International Union of Operating Engineers, Local 513 v. NLRB (14-CB-10424& D.C. Cir. 10-1121 & 10-1137), April 5, 2011

In a published opinion, the D.C. Circuit denied enforcement of the Board's decision and order finding that the union violated the Act by disciplining a member for reporting a safety violation that resulted in another union member's 3-day suspension.  

In doing so, the court rejected Board precedent holding that a union violates Section 8(b)(1)(A) when it disciplines an employee for reporting a work rule infraction that the employee was required to report pursuant to the employer’s work rules, regardless of whether the employee acted alone.  Noting that the statutory definition of protected activities under Section 7 of the Act includes the requirement that such activities be “concerted,” the Court concluded that without a finding of concerted activity there could be no restraint or coercion of the employee in the exercise of rights protected by the statute, and therefore no Section 8(b)(1)(A) violation.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Bradford Printing and Finishing (01-RD-02144) April 4, 2011. Order denying request for review.

Watonwan County (18-WH-00021) April 4, 2011. Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938.

Wright County (18-WH-00022) April 4, 2011. Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938.

City of Anderson (20-WH-00021) April 5, 2011. Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938.

Ingham County (07-WH-00221) April 5, 2011. Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938.

Waseca County (18-WH-00023) April 5, 2011. Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938.

Millard Refrigerated Services Inc. (18-RC-17690) April 6, 2011. Decision and certification of results of election.

Rainy Lake Medical Center (18-RC-17705, et al.) April 6, 2011. Decision and certifications of representative.

Kirkstall Inc., Kirstall Road Enterprises Inc. (02-RC-23547) April 6, 2011. Decision and order remanding to RD for further appropriate action. Order rescinding decision and certification of representative dated 3/30/2011.

Stericycle Inc. (04-RC-21788) April 7, 2011. Order denying request for review.

New Vista Nursing and Rehabilitation (22-RC-13204) April 8, 2011. Order denying request for review.

Trinity Continuing Care Services d/b/a Sanctuary at McCauley (07-RC-23402 et al) April 8, 2011. Order granting  review with respect to one aspect of the request for review and denying review in all other respects. Member Hayes would have granted the request for review in its entirety.

C Cases

Sprain Brook Manor Nursing Home, LLC (02-CA-40231) April 4, 2011. Order denying petition to revoke subpoena duces tecum B-624948.

United StatesPostal Service (05-CA-36088) April 5, 2011. Decision and order pursuant to a settlement stipulation.

United StatesPostal Service (05-CA-35970) April 7, 2011. Decision and order pursuant to a settlement stipulation.

Star West Satellite Inc. (19-CA-32870 et al.) April 8, 2011. Order denying motion to dismiss or for summary judgment.

Peregrine Co. Inc. (28-CA-22469) April 8, 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 April 22, 2011.

United Food and Commercial Workers, Local 5 (Rite Aid) (32-CB-07066) April 8, 2011. Order denying motion to quash subpoenas.

 

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