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Summary of NLRB Decisions for Week of August 27-31, 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 Decisions

Kennametal, Inc. (01-CA-046689; 358 NLRB No. 108) Lyndonville, VT, August 28, 2012.

The Board found that the employer violated the Act by threatening employees with reprisals because of the union’s grievance and unfair labor practice filings.  The Board also found that neither the respondent’s layoff of seven employees nor the elimination of the local union president’s day shift position was in retaliation for any union activity or activity connected to the unfair labor practice filings. 

Charge filed by United Steelworkers, Local 5518, affiliated with United Steelworkers of America, AFL-CIO, CLC.  Administrative Law Judge Paul Bogas issued his decision on February 16, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Redburn Tire Company  (28-CA-023527, et al.; 358 NLRB No. 109) Phoenix, AZ, August 31, 2012. 

The Board adopted the administrative law judge’s finding that the parties, during negotiations for a successor collective-bargaining agreement, reached impasse when they could not come to an agreement on medical insurance—the critical issue in the negotiations.  The Board emphasized that the union, while failing to put forth any counteroffers, insisted that there would be no agreement unless the employer changed its final offer.  Accordingly, the Board adopted the judge’s finding that the employer acted lawfully when it threatened to and then did unilaterally implement its final offer permanently replaced economic strikers, and posted a sign in the strikers’ view announcing the number of striker-replacement applications received.   

Charges filed by General Teamsters (Excluding Mailers), State of Arizona, Local 104, an affiliate of the International Brotherhood of Teamsters.  Administrative Law Judge Gerald A. Wacknov issued his decision on April 23, 2012.  Chairman Pearce and Members Hayes and Block participated.    

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

National Steel & Ship Building Company  (21-RC-064502) San Diego, CA, August 27, 2012.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Member Hayes dissented:  would grant review with regard to whether or not the firefighter employees are statutory guards and whether or not the lead firefighters are statutory supervisors.  Petitioner – International Brotherhood of Boilermakers Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO.  Chairman Pearce and Members Hayes and Block participated.

Aramark Sports, LLC  (04-RC-021685) Philadelphia, PA, August 28, 2012.  Decision and certification of results of election.  Petitioner – Pennsylvania Convention Center Service Employees Union. 

Colegio de Tecnicos de Refrigeracion Y Aire Acondicionado de Puerto Rico (24‑RC‑082214) Puerto Nuevo, PR.  Decision and order where the Board adopted the Regional Director’s decision and ordered that proceeding be remanded to the Regional Director for further appropriate action.  Petitioner – Union de Empleados Del Colegio de Tecnicos de Refrigeracion Y Aire Acondicionado de Puerto Rico.

Schwarz Partners Packaging, LLC d/b/a Maxpak  (12-RC-073852) Lakeland, FL, August 29, 2012.  Decision and direction that the Regional Director open and count ballots.  Petitioner – United Steelworkers International Union.  Chairman Pearce and Members Griffin and Block participated.

C Cases

Voith Industrial Services, Inc. (09-CA-075496, et al.) Louisville, KY, August 27, 2012.  Order granting the Acting General Counsel’s request for special permission to appeal the ruling of the administrative law judge granting in part the respondent’s petition to quash subpoena duces tecum as it applied to paragraph 23.  Member Hayes dissented: would deny the Acting General Counsel’s request for special permission to appeal.  Charges filed by General Drivers, Warehousemen & Helpers, Local 89, affiliated with the International Brotherhood of Teamsters.

AMJ Sheetmetal & HVAC, LLC  (04-CA-083412) Freehold, NJ, August 9, 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 Sheet Metal Workers International Association, Local 19.

Kindred Nursing Centers East, LLC d/b/a Kindred Healthcare at Raleigh Rehabilitation and Healthcare  (11‑CA‑066552) Raleigh, NC, August 29, 2012.  Order denying the Acting General Counsel’s request for special permission to appeal the administrative law judge’s ruling approving an informal settlement agreement settling the complaint allegations.  Charge filed by an individual.  Chairman Pearce and Members Hayes and Block participated.

International Brotherhood of Electrical Workers, Local 48, AFL-CIO  (19‑CD‑080738) Portland, OR, August 29, 2012.  Order denying motion for reconsideration.  Charge filed by ICTSI Oregon, Inc.  Members Hayes, Griffin, and Block participated.

United States Postal Service  (07-CA-076394 et al.) Mt. Clemens, MI, August 29, 2012.  Decision and order – the respondent is to cease and desist from unreasonably delaying in furnishing the charging union with relevant requested information, or in any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in the Act and refusing to bargain collectively and in good faith with the charging union as the servicing representative of the exclusive collective-bargaining representative of the unit.  Charge filed by Branch 654, National Association of Letter Carriers, AFL-CIO.  Chairman Pearce and Members Hayes and Block participated.

Greenville Federal Financial Corporation d/b/a Greenville Federal  (09‑CA‑075284 et al.) Greenville, OH, August 30, 2012.  Order denying motion of the respondent to dismiss the complaint.  Charges filed by an individual.  Chairman Pearce and Member Hayes and Block participated.

Apollo Detective, Inc.  (15-CA-061510) Calumet Park, IL, August 30, 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 Local 1, Service Employees International Union. 

3815 9th Avenue Meat and Produce Corp., d/b/a Compare Supermarket  (02-CA-067534 et al.) New York, NY, August 31, 2012.  Order adopting the findings and conclusion of the administrative law judge’s decision and ordering the respondent to take recommended action.  Charges filed by United Food and Commercial Workers Union, Local 342. 

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Appellate Court Decisions

Public Service Company of New Mexico, 28-CA-023148 (published at 356 NLRB No. 160) (10th Cir. decided August 28, 2012)

In a published opinion, the Court denied the petition for review and enforced the Board’s order finding that the employer violated Section 8(a)(5) by unreasonably delaying a response to the union’s request for information related to a pending grievance. 

The employer terminated the grievant -- a bill collector for the electric utility -- for violating state law and corporate policies by disconnecting the gas line of a difficult customer.  To investigate possible disparate treatment, the union requested information regarding discipline issued to other employees, including two named supervisors involved in a gas leak, for violations of the same laws and policies.  The employer claimed the information was not relevant and did not turn it over until just before the unfair-labor-practice hearing.

Applying Section 10(e) of the Act, the Court found that it could not consider several of the employer’s arguments because they were not first raised to the Board in exceptions, explaining at length the section’s principles and why its bar is truly jurisdictional.  The Court concluded that the record did not support the employer’s remaining arguments that: (1) the union already had the supervisors’ information, (2) non-unit employees were not similarly situated so their discipline was irrelevant to the grievance, (3) the union did not timely explain the relevance of the information, and (4) the union sought the supervisors’ information in this case to publicize it and circumvent a protective order from a state investigation into the gas leak.

The Court’s opinion is available here.

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Warren Unilube, Inc., Board Case No. 26-CA-023999 (reported at 357 NLRB No. 9) (8th Cir. decided August 28, 2012)

In a published opinion, the Court enforced the Board’s order finding that the employer acted unlawfully when it refused to bargain to challenge the conduct of the November 2010 election won by the union.  In doing so, the Court held that substantial evidence supported the Board’s rejection of the employer’s election objections, which focused on a negative editorial published immediately before the election, a blocking charge and the absence of a hearing.

Two days before the scheduled election, a local newspaper published an editorial that warned of potentially “dire consequences” if the Teamsters, Local 667 won the election, stating “from all we know, if this union succeeds the company’s management could very easily close shop and cause every worker to loose[sic] their jobs.” The editorial ended with the “hope” that employees would send a message to the Teamsters that “they are not welcome on this side of the Mississippi River.”  The following day the union filed an unfair labor practice charge on the basis of the editorial; the charge blocked the election. That same day, the company president issued a memorandum to all employees that discussed the editorial and stated that the employer did not intend to close the plant irrespective of the election outcome.  Two weeks later, the union filed a request to proceed with the election, and the parties agreed to hold the election approximately one month from the original date.  The union won the election 69-56.

The Court agreed with the Board that the union’s unfair labor practice charge was not baseless or frivolous.  The Court viewed the editorial in context, recognizing that threats of plant closure are “one of the most potent instruments of employer interference” with employees’ free choice.  And, although the editorial did not attribute the information to a source, the Court noted that the employer had motive and opportunity and anonymous media sources “are notoriously difficult to trace.”  Additionally, according to the employer’s own evidence, several employees believed the employer was behind the editorial.  The Court held that the union’s decision to proceed to election one month later did not support the employer’s claim that the charge was baseless but reflected the union’s rational view that a sufficient amount of time had passed to make a fair election possible.

Likewise, the Court disagreed with the employer that the Regional Director’s decision to postpone the election—rather than holding the election and impounding the ballots—warranted overturning the election.  Although the Court recognized that the election could have proceeded under challenge, the Court rejected the employer’s argument that, under the Board’s regulations, the Regional Director must have “substantial evidence” supporting the charge before postponing the election.  Rather, the Court agreed with the Board that the Regional Director properly exercised his discretion and considered the evidence as one factor in his decision to postpone the election. 

Finally, the Court concluded that the Board properly denied the employer’s objections without a hearing because it failed to make a “prima facie showing of objectionable conduct” that required an evidentiary hearing.

The Court’s opinion is available here.

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Decisions of Administrative Law Judges

United States Postal Service  (10-CA-077588, et al.; JD(ATL)‑19‑12) Decatur, AL.  Charges filed by American Postal Workers Union, AFL-CIO, North Alabama Area, Local 359.  Administrative Law Judge Keltner W. Locke issued his decision on August 29, 2012.

Dayshore Ambulance Company  (20-CA-035598; JD(SF)-41-12) Sacramento, CA.  Charge filed by National Emergency Medical Services Association.  Administrative Law Judge Jay R. Pollack issued his decision on August 30, 2012.

Nexeo Solutions, LLC  (12-CA-046694, et al.; JD(SF)‑42‑12) Willow Springs, IL and Fairfield, CA.  Charges filed by Truck Drivers, Oil Drivers, Filling Station and Platform Workers’ Unions, Local 705, an affiliate of the International Brotherhood of Teamsters.  Administrative Law Judge William G. Kocol issued his decision on August 30, 2012.

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