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Summary of NLRB Decisions for Week of August 29 - September 2, 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

Stevens Creek Chrysler Jeep Dodge, Inc. (20-CA-33367, et al.; 357 NLRB No. 57) San Jose, CA, August 25, 2011.

In this supplemental decision, a unanimous panel of the Board reversed the Administrative Law Judge and found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging an employee for engaging in union activity during an organizing campaign.  Based on this violation and multiple other violations committed by the Respondent that violated Section 8(a)(1), the Board, relying on authority granted by the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),  issued an order requiring the Respondent to bargain with the union as the representative of the unit employees for the purpose of reaching a collective bargaining contract.  Subsequent to the bargaining obligation imposed on the Respondent, it unilaterally eliminated an employee’s bargaining unit position and refused the union’s request for information that was relevant and necessary for the union to prepare for contract negotiations.  The Board found that this conduct violated Section 8(a)(5) and (1). 

 Charges filed by Machinists District Lodge 190, Machinists Automotive Local 1101, International Association of Machinists and Aerospace Workers, AFL-CIO.  Administrative Law Judge Jay R. Pollack issued his decision July 1, 2008 and supplemental decision July 29, 2009.  Chairman Liebman and Members Becker and Pearce participated.  

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1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation & Nursing Center (22-RC-13139; 357 NLRB No. 71) Bound Brook, NJ, August 26, 2011.

The Board majority (Member Hayes, dissenting) adopted the Hearing Officer’s recommendations to overrule the Employer’s objections to an election, and certified the union.  With respect to the Employer’s first objection, the Board found that the union’s addition of the words “I’m voting yes” or “We’re voting yes” to employees’ statements of support published in the union’s campaign flyer did not amount to unlawful misrepresentation under the well-established standard for evaluating campaign propaganda.  The union had explained to participating employees that it was creating a campaign flyer for dissemination before the election.  Those employees had signed release forms authorizing the union to use their statements of support made on the release forms and in campaign videos.  The Board found that the union reasonably believed that each of the named employees would vote for representation based on evidence of the employees’ support.  Moreover, voters receiving the flyer could easily identify it as union campaign propaganda.  Member Hayes, dissenting, would sustain this objection and set aside the election based on misrepresentation in the creation and attribution of quotes to employees without prepublication verification. 

Petitioner – 1199 SEIU United Healthcare Workers East, New Jersey Region.  Hearing Officer issued report January 19, 2011.  Member Pearce was recused and did not participate.  Chairman Liebman and Members Becker and Hayes participated.

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Acme Bus Corporation (2-CA-38981, 39422; 357 NLRB No. 82) Middletown, NY, August 26, 2011.

The Board adopted the Administrative Law Judge’s conclusions (and rationale) that the Respondent violated Section 8(a)(1) of the Act by interrogating employees about union activities; orally promulgating and maintaining a rule prohibiting employees from discussing the union at work; orally promulgating, maintaining, and disparately enforcing an overly broad solicitation/distribution rule; creating the impression that employees’ protected activities were under surveillance; and subjecting employees to closer scrutiny in retaliation for their union support.  The Board majority (Chairman Liebman and Member Pearce) also adopted the judge’s conclusion (but not his rationale) that the Respondent violated 8(a)(1) by interrogating one employee regarding his pretrial affidavit:  the majority found this interrogation inherently coercive, while Member Hayes found no need to pass on whether this interrogation was lawful given the essentially cumulative nature of the other unlawful interrogations.

The Board majority also adopted the judge’s conclusions that the Respondent violated Section 8(a)(3) of the Act by discharging six employees because they engaged in union activities.  Member Hayes dissented as to one of the six.  

Charges filed by International Brotherhood of Teamsters, Local 445.  Administrative Law Judge Steven Davis issued his decision February 9, 2010.  Chairman Liebman and Members Pearce and Hayes participated.

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Beacon Sales Acquisition, Inc. d/b/a Quality Roofing Supply Company (4-CA-36852, 36879; 357 NLRB No. 75) Philadelphia, PA, August 26, 2011.

A unanimous panel of the Board adopted the Administrative Law Judge’s finding that the Employer violated the Act by unilaterally implementing health insurance premium increases for its union-represented employees in January 2009.  The Board agreed with the judge that the union did not “clearly and unmistakably” waive its right to file a charge challenging the unilateral change when it entered into a February 2009 non-Board settlement agreement with the Employer that provided, among other things, that “[t]he Union will inform the Region and/or National Labor Relations Board that the union and its members are withdrawing all unfair labor practice charges or appeals . . . with prejudice.”  The Board noted that the union’s unilateral-change charge was not pending at the time of the parties’ non-Board settlement and that it involved different unlawful conduct from any of the unfair labor practice charges that the union withdrew as part of the settlement.  Members Becker and Pearce also adopted the judge’s finding that the Employer violated the Act by refusing to meet and bargain with the union for a one-month period without the presence of a Federal mediator.  Chairman Liebman, dissenting, would have found that the Employer’s refusal to bargain for 30 days was privileged by the union’s breach of its ground-rules agreement with the Employer that provided, among other things, that the parties agreed “to utilize the FMCS mediator during their negotiations” unless either party gave 30-days notice to cancel the agreement.

Charges files by the International Union of Operating Engineers Local 542, AFL-CIO.  Administrative Law Judge David I. Goldman issued his decision July 29, 2010.  Chairman Liebman and Members Becker and Pearce participated.

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Continental Auto Parts (22-CA-29125; 357 NLRB No. 78) Newark, NJ, August 26, 2011.

The Board reversed the Administrative Law Judge and dismissed the complaint.  Contrary to the judge, the Board found that Section 10(b) barred litigation of the complaint’s allegation that the Respondent had violated the Act by threatening employees with a loss of benefits.  Also contrary to the judge, the Board majority, Member Becker dissenting, found that even assuming that the Acting General Counsel had met his initial Wright Line burden of demonstrating unlawful motivation, the Respondent had met its rebuttal burden of showing that it would have discharged an employee for refusing to perform assigned work and to follow instructions, even absent his union activities. 

Charge filed by United Auto Workers, Region 9, Local 2326.  Administrative Law Judge Steven Davis issued his decision June 16, 2010.  Chairman Liebman and Members Becker and Hayes participated.

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Flagstaff Medical Center, Inc.(28-CA-21509; 357 NLRB No. 65) Flagstaff, AZ, August 26, 2011.

The Board adopted the Administrative Law Judge’s dismissals of complaint allegations that Respondent Flagstaff Medical Center (FMC) failed to bargain in good faith by unilaterally subcontracting bargaining-unit work, discriminated against several employees because of their union activities, coerced employees through numerous incidents of interrogation, surveillance and disparagement, and maintained an overly broad restriction on photography in the workplace.  However, the Board also found that FMC violated the Act by discharging one employee and changing the work schedule of another because of their union activities and coerced employees through threats and other incidents of interrogation.  The Board adopted the judge’s dismissal of an allegation that the two respondents constituted a joint-employer of the hospital’s housekeeping employees.

Member Pearce, dissenting in part, disagreed with the majority’s dismissal of allegations that FMC unlawfully changed the work schedule of one employee and issued a negative performance appraisal to another employee because of their union activities.  Member Pearce also disagreed with the majority’s findings that the Respondent’s ban on photography in the workplace was not unlawfully overbroad and that FMC and Sodexho did not constitute a joint-employer of the hospital’s housekeeping employees.

Member Hayes, dissenting in part, disagreed with the majority’s findings that FMC’s president unlawfully threatened employees that unionization would be futile and that FMC unlawfully discharged one employee and changed another’s work schedule because of their union activities. 

Charges filed by Communications Workers of America, Local 7019, AFL-CIO and National Nurses Organizing Committee/California Nurses Association.  Administrative Law Judge Gerald A. Wacknov issued his decision May 20, 2009.  Chairman Liebman and Members Pearce and Hayes participated.

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Hyundai America Shipping Agency, Inc. (28-CA-22892; 357 NLRB No. 80) Scottsdale, AZ, August 26, 2011.

A unanimous panel of the Board adopted the Administrative Law Judge’s finding that the Employer violated the Act by maintaining or enforcing the following rules in its Employee Handbook: (1) a provision stating that "employees should only disclose information or messages from these systems [including the Employer’s email, instant messaging, and phone systems] to authorized persons”; (2) a provision stating that “any unauthorized disclosure of information from an employee's personnel file is a ground for discipline, including discharge”; (3) a provision reading, “Voice your complaints directly to your immediate superior or to Human Resources through our ‘open door’ policy.  Complaining to your fellow employees will not resolve problems.  Constructive complaints communicated through the appropriate channels may help improve the workplace for all”; and (4) a provision threatening employees with disciplinary action for "performing activities other than company work during working hours.”  A unanimous panel of the Board also adopted the judge’s finding that the Employer violated the Act by promulgating, maintaining, or enforcing an oral rule prohibiting employees from discussing with other persons any matters under investigation by its human resources department.

Chairman Liebman and Member Becker also found, contrary to the judge, that the Employer did not violate the Act by maintaining or enforcing two rules in its Employee Handbook that threaten employees with disciplinary action for: (1) “indulging in harmful gossip” and (2) “exhibiting a negative attitude toward or losing interest in your work assignment.”  Member Pearce, dissenting, would have adopted the judge’s findings that the two rules violated the Act because employees would reasonably construe their language to prohibit protected activities.

Finally, Chairman Liebman and Member Becker adopted the judge’s dismissal of the complaint allegation that the Employer violated the Act by discharging an employee.  Member Pearce, dissenting, would have found the employee’s discharge unlawful on the ground that the Employer failed to prove that it would have discharged the employee even in the absence of protected activity.

Charges filed by an individual.  Administrative Law Judge Gregory Z. Meyerson issued his decision October 18, 2010.  Chairman Liebman and Members Becker and Pearce participated.

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Lamons Gasket Company, a Division of Trimas Corporation (16-RD-1597; 357 NLRB No. 72) Houston, TX, August 26, 2011.

The Board majority overruled Dana Corp., 351 NLRB 434 (2007), which instituted a 45-day “window period” after voluntary recognition during which employees could file a decertification petition and which required the employer to post a notice to employees advising them of that right.  The Board returned to its previous “recognition bar” rule, set forth in Keller PlasticsEastern, 157 NLRB 583 (1966), under which an employer’s voluntary recognition of a union, based on a showing of majority support, bars any challenge to the union’s representative status for a reasonable period of time, in order to give the new bargaining relationship a chance to succeed.  The Board majority also defined that “reasonable period of time” as no less than 6 months after the parties’ first bargaining session and no more than 1 year.  Member Hayes, dissenting, would adhere to Dana Corp., finding that the majority’s position reflected a “purely ideological choice” that was not supported by empirical evidence or “reasoned” explanation.

Petitioner – an Individual.  Chairman Liebman and Members Becker, Pearce and Hayes participated.

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Nova Southeastern University(12-CA-25114, et al.; 357 NLRB No. 74) Ft. Lauderdale, FL, August 26, 2011. 

The Board, applying the analysis set forth in New York New York, 356 NLRB No. 119 (2011), found that the Respondent unlawfully interfered with the Section 7 rights of an employee of its maintenance contractor, UNICCO, when the Respondent prevented the employee from distributing prounion handbills, as part of an organizational effort, to coworkers in a parking lot outside the campus building where UNICCO was located, while both the employee and coworkers were off duty.  The Board adopted the Administrative Law Judge’s findings that the Respondent’s no-solicitation rule, which applied even to its own employees, was unlawfully overbroad and that the Respondent also violated Section 8(a)(1) when several of its managers and a UNICCO manager repeated the prohibition on handbilling to the employee.  Based on its determination that the manager acted as the Respondent’s agent in disciplining the employee for violating the no-solicitation rule, but not in further disciplining the employee for leaving the work area to complain about the rule.  The Board found that the Respondent violated Section 8(a)(1) with regard to the former discipline but not the latter.  Finally, the Board found that the Respondent violated 8(a)(1) when the manager coercively linked a former UNICCO employee’s support for the Union with failure to be hired by a contractor that replaced UNICCO.

Charges filed by Service Employees International Union, Local 32B-32J.  Administrative Law Judge John H. West issued his decision March 16, 2009. Chairman Liebman and Members Becker and Pearce participated.

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Raley’s (20-CA-24973, et al.; 357 NLRB No. 81) West Sacramental, CA, August 26, 2011.

The Board issued a partial award under the Equal Access to Justice Act (EAJA) to the Applicant, United Wholesalers and Retailers Union (UWRU), for attorney fees it incurred in the underlying case, Raley’s, 348 NLRB 382 (2006).  A Board majority consisting of Chairman Liebman and Member Becker agreed with the Administrative Law Judge that the General Counsel was substantially justified in taking the case against UWRU, as an inclusive whole, to trial.  However, the Board found that the General Counsel’s position with respect to UWRU was no longer substantially justified when he finished presenting his case-in-chief at trial, and that UWRU was therefore entitled to an EAJA award for the fees it incurred after that point, subject to further reduction by additional amounts to be determined by the judge on remand.  Member Hayes, concurring in part and dissenting in part, would have found that the General Counsel’s case was not substantially justified from the time the underlying complaint was amended to add UWRU as a respondent, and that UWRU was consequently entitled to an award running from that date. 

Charges filed by Independent Drug Clerks Association.  Administrative Law Judge William L. Schmidt issued his decision October 10, 2007.  Chairman Liebman and Members Becker and Hayes participated.

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Specialty Healthcare and Rehabilitation Center of Mobile(15-RC-8773; 357 NLRB No. 83) Mobile, AL, August 26, 2011.

The Board majority determined that it would apply traditional community-of-interest principles to unit determinations at non-acute health care facilities such as the Employer’s nursing home.  In so holding, the majority overruled Park Manor Care Center, 305 NLRB 872 (1991), which took into account at non-acute health care facilities not only traditional community-of-interest factors but also factors the Board considered relevant in its Health Care Rulemaking.  The Board also clarified the test it would apply in cases where an employer contends that a proposed unit is inappropriate because it excludes certain classifications of employees.  In such cases, the employer will be required to show that the excluded employees share “an overwhelming community of interest” with employees in the proposed unit, a test set out in Blue Man Vegas, LLC v. NLRB, 529 F.3d 417(D.C. Cir. 2008).  Applying these criteria, the Board majority found that the 53 Certified Nursing Assistants (CNAs) at the Employer’s nursing home constitute an appropriate unit and that the Employer failed to show that the employees excluded from the petitioned-for unit share an overwhelming community of interest with the CNAs.  Member Hayes, dissenting, would continue to apply the Park Manor test to non-acute health care unit determinations.  Member Hayes also disagreed with the majority’s application of an “overwhelming community of interest” test. 

Petitioner – United Steelworkers, District 9.  Chairman Liebman and Members Becker, Pearce and Hayes participated.

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Specialty Hospital of Washington-Hadley, LLC(5-CA-33522; 357 NLRB No. 77) Washington, DC, August 26, 2011.

The Board found that the Employer, Specialty Hospital of Washington, violated the Act by refusing to bargain with the incumbent union.  Specialty Hospital, a successor employer, took over operations on November 13, 2006.  It refused to recognize the incumbent union because the existing unit included guards and professionals and was thus inappropriate under Board law.  The union disclaimed interest in the guards and professionals and again requested recognition.  The Employer refused.

The Board majority found that, by disclaiming interest in 15 of 163 unit employees, the union had not substantially altered the existing unit, and thus the Employer retained the duty, as a successor, to recognize and bargain with the incumbent union.  In addition, the majority rejected the Employer’s claim that the new unit, absent guards and professionals, was inappropriate.  The Board ordered the Employer to recognize and bargain with the union, to rescind (at the union’s request) any changes made to terms and conditions of employment since its refusal to bargain, and to make unit employees whole for any losses incurred because of the Employer’s unilateral changes.

In dissent, Member Hayes noted that the Board has never allowed a party to unilaterally alter a unit as the union did in this case.  In his view, once the Employer lawfully refused to bargain in the inappropriate unit, the Employer’s duty to bargain as a successor ended.  Any further bargaining between the parties should start anew.  In the alternative, Member Hayes found that the altered unit was also inappropriate.

Charge filed by 1199 SEIU, United Healthcare Workers East, MD/DC Division.  Administrative Law Judge Eric M. Fine issued his decision August 26, 2009.  Chairman Liebman and Members Becker and Hayes participated.

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Tenneco Automotive, Inc. (07-CA-49251, et al.; 357 NLRB No. 84) Grass Lake and Jackson, MI, August 26, 2011.

The Board found that the Respondent: (1) violated Section 8(a)(5) of the Act by failing to respond to the union’s information request about its announced (but ultimately abandoned) plan to install surveillance cameras in one of its laboratories, finding that information was relevant at the time the request was made; (2) violated Section 8(a)(5) by refusing to provide the union with the home addresses of strike replacement employees, finding that there was no “clear and present danger” that the union would misuse the information; (3) violated Section 8(a)(3) by disciplining employee and union supporter for wearing a t-shirt to work with the slogan “thou shall not scab” and subsequently changing the slogan after employee’s supervisor requested that he cover it, finding that the Respondent failed to show that it would have disciplined employee in the absence of  protected activity; (4)  violated Section 8(a)(1)  Act by prohibiting speech intended to “evoke a response” finding that employees would reasonably construe the directive as one that applied to Section 7 activity; (5) violated Section 8(a)(5) by prohibiting employees from posting on bulletin boards without notice or opportunity to bargain the unilateral change; (6) violated Section 8(a)(5) by withdrawing recognition from the union, finding that the petition was tainted by the Respondent’s unlawful conduct that effectively precluded the union from communicating with employees.

In his partial dissent, Member Hayes disagreed with the majority’s finding that there is no clear and present danger that the union would misuse the home addresses of replacement employees, stating that the request was made immediately following the end of a long and contentious strike. 

Charge filed by Local 660 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America.  Administrative Law Judge Earl E. Shamwell Jr. issued his decision April 16, 2008.  Chairman Liebman and Members Pearce and Hayes participated.

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UGL-UNICCO Service Company(01-RC-22447; 357 NLRB No. 76) Charleston, MA, August 26, 2011.

The Board majority (Chairman Liebman and Members Becker and Pearce), overruled MV Transportation, 337 NLRB 770 (2002), and returned to the successor bar doctrine.  Under the successor bar doctrine, when a successor employer acts in accordance with its legal obligation to recognize the incumbent representative of its employees, that representative is entitled to represent the employees in collective bargaining with their new employer for a reasonable period of time, without challenge to its representative status.  St. Elizabeth Manor, Inc., 329 NLRB 341 (1999).  The Board modified the successor bar doctrine as articulated in St. Elizabeth Manor by defining, for two different situations, the required “reasonable period of bargaining,” and modified the “contract bar” doctrine to address a prospect raised in MV Transportation: that a challenge to the incumbent union’s majority status by employees or by a rival union might be precluded for an unduly long period, should the insulated periods based on the successor bar and the contract-bar doctrines overlap.  Member Hayes, dissenting, argued that the majority failed to provide any reasoned explanation as to why the policy they advocate is preferable to the policy established in the precedent they now overrule, and that their opinion is inconsistent with, and an attack on U.S. Supreme Court precedent. 

Petitioner – Area Trades Council a/w International Union of Operating Engineers Local 877, International Brotherhood of Electrical Workers Local 103, New England Joint Council of Carpenters Local 51, Plumbers and Gasfitters Union (UA) Local 12, and the Painters and Allied Trades Council District No. 35 and Firemen and Oilers Chapter 3, Local 615, Service Employees International Union.  Chairman Liebman and Members Becker, Pearce and Hayes participated.

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Land-O-Sun Dairies, LLC(5-CA-36199; 357 NLRB No. 73) Richmond, VA, August 26, 2011.

By failing and refusing since August 5, 2010, to recognize the union as the exclusive collective-bargaining representative of the Respondent’s clerical employees, and by failing and refusing to apply the terms and conditions of its 2010-2013 collective-bargaining agreement with the union to its clerical employees, the Board found that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.

Charge filed by Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 358, AFL-CIO.  Chairman Liebman and Members Becker and Pearce participated.

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New Vista Nursing and Rehabilitation, LLC(22-CA-29988; 357 NLRB No. 69) Newark, NJ, August 26, 2011.

This is a refusal-to-bargain case in which the Respondent contested the union’s certification as bargaining representative in the underlying representation proceeding.  About May 3, 2011, the union, by letter, requested that the Respondent recognize and bargain collectively with it as the exclusive collective-bargaining representative of the unit and to provide the union with specific information.  On May 13, 2011, the Respondent sent an email to the union stating that it would not bargain and was testing the union’s certification. 

Charge filed by 1199 SEIU United Healthcare Workers East, NJ Region.  Chairman Liebman and Members Becker and Hayes participated.

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Ardsley Bus Corporation, Inc., a/k/a Gene’s Bus Company(02-CA-38713, et al.; 357 NLRB No. 85) Ardsley, NY, August 31, 2011.

The Board adopted the Administrative Law Judge’s findings that the Respondent, which operates a school bus service, violated Section 8(a)(1) of the Act by physically assaulting the union’s shop representative; violated Section 8(a)(3) and (1) by suspending the shop steward for seeking a union representative to accompany him to a disciplinary meeting; and violated Section 8(a)(5) and (1) by failing to furnish requested information about school bus routes on several occasions;failing to post summer-camp bus routes and certain 2008-2009 school-year routes for seniority bidding as required by the parties’ contract; refusing to meet for a contractually required second-step grievance meeting; refusing to bargain so long as the union’s recently discharged shop steward was on the union’s negotiating team;  refusing to bargain until it received the union’s proposals for a successor collective-bargaining agreement in writing; withdrawing recognition from the union based on a  decertification petition that had been tainted by the Respondent’s unremedied unfair labor practices; and unilaterally changing terms and conditions of employment of the unit employees after its withdrawal of recognition. The Board adopted the judge’s dismissals of allegations that the Respondent had unlawfully threatened and interrogated employees and unlawfully discharged the shop steward after he disrupted a state-mandated medical exam. As to the discharge, Member Becker noted that he would apply a somewhat different analysis than his colleagues, but agreed that the discharge was not unlawful.  The Board also declined to defer certain allegations to the parties’ arbitration process, noting that, among other things, the Respondent had effectively repudiated the arbitration proceedings on those issues and purportedly fired the arbitrator.

Chairman Pearce and Member Becker reversed the judge’s dismissal of allegations that the Respondent violated Section 8(a)(1) by threatening an employee that it would be futile for the Union to bring a grievance to the Respondent and by threatening unspecified reprisals. Dissenting, Member Hayes found the alleged threats too ambiguous to establish a violation of the Act.  Chairman Pearce and Member Becker also reversed the judge’s dismissal of allegations that the Respondent violated Section 8(a)(5) and (1) and 8(d) of the Act by failing to post charter bus and extra bus runs for seniority bidding.  Member Hayes would adopt the judge’s dismissal, as he found the particular issue a matter of contract interpretation best suited for resolution under the parties’ dispute resolution process.

In the absence of exceptions, the Board adopted the judge’s broad cease-and-desist order and affirmative bargaining order.  

Charges filed by Transport Workers Union of Greater New York, Local 100, AFL-CIO.  Administrative Law Judge Raymond P. Green issued his decision March 2, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Case

Aramark Uniform and Career Apparel, LLC (18-RD-02692) Fridley, MN, August 26, 2011.  Order granting Union’s request for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Member Hayes, dissenting: for reasons stated in dissent in Lamons Gasket, Co., would process the petition.  Petitioner – an Individual.  Members Becker, Pearce and Hayes participated.

Aramark Educational Services, LLC (22-RD-01545) Glen Ridge, NJ, August 26, 2011.  Order granting Union’s request for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Member Hayes, dissenting: for reasons stated in dissent in Lamons Gasket, Co., would process the petition.  Petitioner – an Individual.  Chairman Liebman and Members Pearce and Hayes participated.

AT&T Mobility, LLC (19-RD-03860) Anchorage, AK, August 26, 2011.  Order granting Union’s request for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Member Hayes, dissenting: for reasons stated in dissent in Lamons Gasket, Co., would process the petition.  Petitioner – an Individual.  Chairman Liebman and Members Becker and Hayes participated.

AT&T Mobility, LLC (19-RD-03854) Redmond, WA, August 26, 2011.  Order granting Union’s request for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Member Hayes, dissenting: for reasons stated in dissent in Lamons Gasket, Co., would process the petition.  Petitioner – an Individual.  Chairman Liebman and Members Becker and Hayes participated.

Basic Contracting Services, Inc. (11-RC-06743) Durham, NC, August 26, 2011.  Order granting Employer’s and Intervenor’s requests for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Member Hayes, dissenting: for reasons stated in dissent in Lamons Gasket, Co., would process the petition. Petitioner – International Union, Security Police and Fire Professionals of America (SPFPA).   Members Becker, Pearce, and Hayes participated.

Building Technology Engineers, Inc. (1-RC-22359, 22361) Boston, MA, August 26, 2011.  Order granting Employer’s and Intervenor/Cross-Petitioner’s (Firemen and Oilers, Chapter 3, Local 615, Service Employees International Union) requests for review of the Acting Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011). Petitioner – Area Trades Council, a/w IUOE Local 877; IBEW Local 103; Plumbers Union (UA) Local 12; Carpenters Union (NERCC) Local 51, Painters Union (IUPAT) DC #35 and Firemen and Oilers, Chapter 3, Local 615, Service Employees International Union.  Chairman Liebman and Members Becker and Pearce participated.

Kaiser Aluminum Fabricated Products, LLC (07-RD-03676) Kalamazoo, MI, August 26, 2011.  Order granting Union’s request for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Member Hayes, dissenting: for reasons stated in dissent in Lamons Gasket, Co., would process the petition.  Petitioner – an Individual.  Chairman Liebman and Members Becker and Hayes participated.

Lagrasso Brothers Produce, Inc. (07-RD-03669) Detroit, MI, August 26, 2011.  Order granting Union’s request for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Petitioner – an Individual.  Chairman Liebman and Members Becker and Pearce participated..

Ocean Enterprise 589, d/b/a The Casino at Ocean Downs (05-RD-01496) Berlin, MD, August 26, 2011.  Order granting Employer’s and Union’s requests for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72(Aug. 26, 2011).  Chairman Liebman and Members Becker and Pearce participated.

Oncor Electric Delivery Company, LLC (16-RD-01600) Dallas, TX, August 26, 2011.  Order granting Union’s request for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Member Hayes, dissenting: for reasons stated in dissent in Lamons Gasket, Co., would process the petition.  Petitioner – an Individual.  Members Becker, Pearce and Hayes participated.

Renzenberger, Inc. (08-RC-17057, et al.) Sandusky, OH, August 26, 2011.  Order granting Petitioner’s request for review of the Regional Director’s decision and order dismissing petitions and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Petitioner – United Electrical, Radio and Machine Workers of America.  Chairman Liebman and Members Becker and Pearce participated.

Renzenberger, Inc. (31-RC-8850, et al.) Barstow, CA, August 26, 2011.  Order granting Petitioner’s request for review of the Regional Director’s decision and order dismissing petitions and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Petitioner – United Electrical, Radio and Machine Workers of America (UE).  Chairman Liebman and Members Becker and Pearce participated.

Saint Louise Regional Hospital (32-RC-05613) Gilroy, CA, August 26, 2011.  Order granting Petitioner’s request for review of the Regional Director’s supplemental decision and certification of representative, remanding proceedings to Regional Director for further appropriate action, and denying request for review in all other respects.  Petitioner – NUHW (National Union of Healthcare Workers.  Chairman Liebman and Members Pearce and Hayes participated.

Sodexo America, LLC (27-RD-01229) Billings, MT, August 26, 2011.  Order granting Union’s request for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011).  Petitioner – an Individual.  Chairman Liebman and Members Becker and Pearce participated.

Tyson Fresh Meats, Inc. a wholly-owned subsidiary of Tyson Foods, Inc.(19-RD-03873) Wallula, WA, August 26, 2011.  Order granting Union’s request for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration in light of Lamons Gasket Co., 357 NLRB No. 72(Aug. 26, 2011).  Member Hayes, dissenting: for reasons stated in dissent in Lamons Gasket, Co., would process the petition.  Petitioner – an Individual.  Chairman Liebman and Members Pearce and Hayes participated.

Hyatt Hotels Corporation d/b/a Hyatt at Fisherman’s Wharf (20-RM-2874) San Francisco, CA, August 31, 2011.  Order affirming Employer-Petitioner’s request for review of the Regional Director’s administrative dismissal of the instant petition.  Member Hayes, dissenting: would grant review.  Petitioner – Hyatt at Fisherman’s Wharf.  Chairman Pearce and Members Becker and Hayes participated.

Hyatt Hotels Corporation d/b/a Hyatt Regency Indianapolis (25-RM-00612) Indianapolis, IN, August 31, 2011.  Order affirming Employer-Petitioner’s request for review of the Regional Director’s administrative dismissal of the instant petition.  Member Hayes, dissenting: would grant review.  Petitioner – UNITE HERE, Local 1.  Chairman Pearce and Members Becker and Hayes participated.

Hyatt Hotels Corporation d/b/a Hyatt Regency Long Beach (21-RM-2681) Long Beach, CA, August 31, 2011.  Order affirming dismissal of petition of Employer-Petitioner’s request for review of the Acting Regional Director’s administrative dismissal of the instant petition.  Member Hayes, dissenting: would grant review.  Petitioner – Hyatt Regency Long Beach.  Chairman Pearce and Members Becker and Hayes participated.

Hyatt Hotels Corporation d/b/a Hyatt Regency Santa Clara (32-RM-00817) Santa Clara, CA, August 31, 2011.  Order affirming Employer-Petitioner’s request for review of the Regional Director’s administrative dismissal of the instant petition.  Member Hayes, dissenting: would grant review.  Petitioner – UNITE HERE, Local 19.  Chairman Pearce and Members Becker and Hayes participated.

Piggly Wiggly Midwest, LLC (30-RD-1539) Kenosha, WI, August 31, 2011.  Order denying Employer’s request for review of the Regional Director’s administrative determination to hold the instant petition in abeyance pending resolution of the outstanding unfair labor practice charge and affirming Regional Director’s determination to hold the petition in abeyance.  Petitioner – and Individual.  Chairman Pearce and Members Becker and Hayes participated.

C Case

C.F. Taffe Plumbing Co. (13-CA-45890) Chicago, IL, September 1, 2011.  Decision and order remanding in part.  Charge filed by an Individual.  Chairman Pearce and Members Becker and Hayes participated.

Tribeca Market LLC d/b/a Amish Market (2-CA-39912) New York, NY, August 19, 2011.  Order adopting the Administrative Law Judge’s decision and ordering the Respondent to take the action set fort in the recommended order of the judge.  Charge filed by an Individual.

Lederach Electric, Inc. (4-CA-37725) Lederach, PA, September 2, 2011.  Order adopting findings and conclusions of the Administrative Law Judge as contained in the decision, and ordering Respondent to take the action set forth in the recommended order of the judge.  Charge filed by International Brotherhood of Electrical Workers, Local 380.

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Appellate Court Decision

International Union of Painter and Allied Trades, District 15, Local 159 v. NLRB, No. 28-CA-21229 (published 355 NLRB No. 123, under the name J & R Flooring, Inc. d/b/a J. Picini Flooring)  (9th Cir., decided August 29, 2011).

In a published opinion, the Court affirmed the Board’s dismissal of unfair labor practice complaints against three Nevada installers of flooring in the construction industry (J&R Flooring; Freeman’s Carpet Service; and FCS Flooring) and enforced the Board’s finding of bad-faith bargaining against the final installer, FSI. 

The controversy arose after the Union sought to use the terms of its collective bargaining agreements with these four employers, negotiated under Section 8(f) of the Act, to transform its collective bargaining relationship into Section 9(a) ones, where recognition is based on majority support and the employer cannot withdraw recognition absent a showing of loss of majority support.  The four contracts contained identically worded clauses that provided the employers would recognize the Union as the Section 9(a) representative of their employees if the Union demonstrated its majority status through card checks conducted by third parties. 

Two weeks before the contract expired, the Union informed FSI that it had obtained authorization cards from a majority of FSI’s employees and sought to set up a date for the card check.  FSI delayed setting a date for the card check and, on the penultimate day of the contract, the Union held the card check on its own, which showed majority support.  FSI refused to recognize the Union as its employees’ Section 9(a) representative.  The Board found FSI’s unreasoned refusal to both participate in, and then accept the results of, the card check was motivated by bad faith and not by a bona fide dispute over the interpretation of the terms of the contract.  As a remedy, the Board ordered FSI to recognize and bargain with the Union as the Section 9(a) representative.

By contrast, with respect to the three non-FSI installers, the Union met with them several times to reach agreement about how to conduct the card check.  The employers objected that the remittance reports used by the Union to determine the employees in the unit were not current; there needed to be assurances that the party conducting the card check was a neutral; and employees may have been misinformed about the purpose of the cards that they signed.  On the day the contract was to expire, the Union nonetheless conducted the card check unilaterally and the employers refused to recognize the results showing the Union had achieved majority status.  The Board exonerated these employers from a finding of bad-faith bargaining because these three employers were found to have advanced a sound and arguable basis for their interpretation of their rights under the contract, such that their refusal to recognize the results of the card check was not done in bad faith.

The Court upheld the Board in all respects.  Moreover, the Board’s analysis prompted the Court, in this decision, to reverse its earlier finding in the review of the union’s separate lawsuit under Section 301 of the Labor-Management Relations Act to compel arbitration in Int’l Union of Painter and Alliance Trades, Dist. 15, Local 159 v. J&R Flooring, Inc., 616 F.3d 953 (9th Cir 2010).  There the Court had found the dispute to be primarily a representational one and belonged before the Board.  In light of the Board’s reasoning, the Court found the dispute to be primarily contractual and subject to arbitration because the parties contractually agreed to determine majority status through a card check and to arbitrate any dispute concerning the card-check provision.  Accordingly the Curt remanded that case to the District Court to compel all parties to arbitrate whether, under the contracts’ card-check provision, the Union established majority status.  The Court included FSI in the remand because, even though the Board’s remedial order already compelled Section 9(a) recognition, the arbitrator could entertain whether there were additional remedies available for any breach of contract found against FSI.

The Court's opinion is available here.

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Decisions of Administrative Law Judges

Evenflow Transportation, Inc. (2-CA-40128; JD(NY)-29-11) Mt. Vernon, NY.  Decision and order transferring proceedings to NLRB. Charge filed by Local 713, International Brotherhood of Trade Unions.  Administrative Law Judge Raymond P. Green issued his decision August 30, 2011.

Leskovar Motors, Inc. (19-CA-32956, et al.; JD(NY)-32-11) Butte, MT.  Decision and order transferring proceedings to NLRB.  Charge filed by International Association of Machinists and Aerospace Workers, AFL-VIO, Local Lodge 88.  Administrative Law Judge Joel P. Biblowitz issued his decision August 30, 2011.

Pratt Industries, Inc. (29-CA-30271, et al.; JD(NY)-31-11) Staten Island, NY.  Decision and order transferring proceedings to NLRB.  Charge filed by International Union of Operating Engineers, Local 30.  Administrative Law Judge Lauren Esposito issued her decision August 30, 2011.

Engineering Contractors, Inc. and ECI of Washington, LLC, alter egos (5-CA-36213; JD‑51‑11) Upper Marlboro, MD.  Decision and order transferring proceeding to NLRB.  Charge filed by Plumbers Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO.  Administrative Law Judge Bruce D. Rosenstein issued his decision September 1, 2011.

Center City International Trucks, Inc. (9-CA-45338, et al.; JD-52-11) Columbus, OH.  Decision and order transferring proceeding to NLRB.   Charges filed by International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 54, Local Lodge 1471.  Administrative Law Judge Ira Sandron issued his decision September 2, 2011.

Hispanics United of Buffalo, Inc. (3-CA-27872; JD-53-11) Buffalo, NY.  Decision and order transferring proceeding to NLRB.  Charge filed by an Individual.  Administrative Law Judge Arthur I. Amchan issued his decision September 2, 2011.

United Steel Workers, Local 4-406 (22-CB-11104; JD(NY)-33-11) Newark, NJ.  Decision and order transferring proceeding to NLRB.  Charges filed by Individuals.  Administrative Law Judge Mindy E. Landow issued her decision September 2, 2011.

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