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Summary of NLRB Decisions for Week of December 10-14, 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

Instituto Socio Economico Comunitario, Inc. (24-CA-011762, et al.; 359 NLRB No. 28) Hato Rey, Toa Baja, Comerio, Lomerio, Caguas, Humacao, Ponce, and Mayaguez, PR, December 10, 2012

Order adopting the findings and conclusions of the administrative law judge’s decision, finding the employer violated the Act when, without prior notice to or bargaining with the union, it required unit employees to take vacation leave during periods not requested by the employees.

Charges filed by Unidad Laboral de Enfermas(os) y Empleados de la Salud.  Administrative Law Judge William N. Cates issued his decision on August 1, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Laguardia Associates, LLP d/b/a Crowne Plaza Laguardia and Laguardia Associates, L.P. a/k/a Laguardia Plaza Hotel f/k/a Laguardia Crowne Plaza Hotel, Debtor-in-Possession (29‑CA-029347; 359 NLRB No. 29) East Elmhurst, NY, December 10, 2012.

Having found that the respondents violated the Act by failing to file a response to the first and second amended compliance specification pleadings, the Board concluded that the backpay due the discriminatees was as stated in the second amended compliance specification and ordered the respondents to pay those amounts, plus interest accrued to the date of payment.

Charge filed by New York Hotel & Motel Trades Council, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Cervera Automotive Group, LLC d/b/a Veracom Ford (20-RC-086155) San Mateo, CA, December 12, 2012.  Having reviewed the record and in light of exceptions and briefs, the Board adopted the Regional Director’s findings and recommendation and found that a certification of representative should be issued.  Petitioner – Machinists District Lodge 190, Machinists Local Lodge 1414.  Chairman Pearce and Members Griffin and Block participated.

Garda CL Atlantic, Inc. (22-RC-086025) Fairfield, NJ, December 13, 2012.  Decision and order no exceptions having been filed, the Board adopted the Regional Director’s findings and recommendations and ordered that the proceeding be remanded to the Regional Director for further appropriate action.  Petitioner – United Federation of Special Police and Security Officers, Inc.

Jewish Vocational Services (31-RC-087528) Santa Clarita, Burbank, Palmdale, Chatsworth, CA, December 13, 2012.  Having no exceptions filed, the Board adopted the Regional Director’s findings and recommendations, and found that a certification of representative should be issued.  Petitioner – American Federation of State, County and Municipal Employees (AFSCME), Local 800. 

Kaleida Health (03-RC-077821) Buffalo, NY, December 14, 2012.  Order denying the petitioner’s request for review of the Regional Director’s decision and direction of election.  Petitioner – Concerned Carpenters for a Democratic Union.  Chairman Pearce and Members Hayes and Griffin participated.

Puna Geothermal Venture (20-RC-078220) Pahoa, HI, December 14, 2012.  Having reviewed the record in light of exceptions and briefs, the Board adopted the hearing officer’s findings and recommendations, and found that a certification of representative should be issued.  Petitioner – International Brotherhood of Electrical Workers, Local 1260.  Members Hayes, Griffin, and Block participated.

C Cases

Laborers International Union of North America, Local 1177 (15-CB-005974) Baton Rouge, LA, December 10, 20120.  Having no statement of exceptions filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and ordered the respondent to take the recommended action.  Charge filed by an individual.

Mid-West Telephone Service, Inc. (08-CA-038901, et al.) Girard, OH, December 10, 2012.  Order denying the respondent’s motion for reconsideration of the decision and order.  Charges filed by individuals.  Members Hayes, Griffin, and Block participated.

United States Postal Service (10-CA-077588(P), et al.) December 10, 2012.  Decision and order approving a Formal Settlement Stipulation between the parties and specifying actions the employer must take to comply with the National Labor Relations Act.  Charges filed by American Postal Workers Union, AFL-CIO, North Alabama Area, Local 359.  Chairman Pearce and Members Griffin and Block participated.

Central Peninsula Hospital, Inc. (19-CA-032835) Soldotna, AK, December 11, 2012.  Order granting the parties’ joint motion to remand cases to the Regional Director.  Charges filed by an individual.

Heartland Human Services (14-CA-087886) Effingham, IL, December 11, 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 State, County and Municipal Employees (AFSCME), Council 31, AFL-CIO.

Roofers, Waterproofers, and Allied Workers Union, Local 36 (21-CB-087432) Los Angeles, CA, December 12, 2012.  Order denying the union’s petitions to revoke subpoena ad testificandums and subpoena duces tecum.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

Goddard Riverside Community Center (02-CA-039604, et al.) New York, NY, December 12, 2012.  Order granting the respondent’s request to remand proceedings to the Regional Director to process the charging party union’s request to withdraw its unfair labor practice charges based on a non-Board settlement, and remanding the matter to the Regional Director for further appropriate action.  Charges filed by UFCW International Union.

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Appellate Court Decisions

Beach Lane Management, Inc., Board Case No. 2-CA-35720 (reported at 357 NLRB No. 30) (2d Cir. decided December 13, 2012)

In an unpublished summary order, the Court granted the Board’s application for enforcement in this case arising out of four superintendents’ attempt to organize the employer’s Manhattan, New York apartment buildings.  The employer responded swiftly, discharging the four, reinstating them pursuant to a Board settlement, and then offering them less supplemental repair work and imposing more onerous working conditions.  At the same time, the employer asked other workers to sign cards for a rival union, offered inducements to employees to oppose the superintendents’ efforts, and threatened workers with adverse consequences if they chose unionization. 

The Second Circuit enforced the Board’s order in full, noting that “[s]ubstantial evidence in the record as a whole supports the conclusion that [the employer] discriminated against the four superintendents,” and, as such, “we will not displace the NLRB’s decision because it is adequately supported in the record.”  The Court also rejected the employer’s argument that one of the discriminatees rendered himself ineligible for reinstatement by submitting a false doctor’s note after a leave of absence, explaining that the Board reasonably concluded that the employer “typically would have given [the discriminatee] the benefit of the doubt . . . and did not do so in this instance solely because of his union organizing activities.”  The Court also summarily enforced a host of unchallenged unfair labor practices, and found that the employer waived a challenge to the order’s remedial language by not raising it to the Board in the first instance. 

The Court’s unpublished order is available here

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Reliant Energy aka Etiwanda LLC, Board Case No. 31-CA-25155 (reported at 357 NLRB No. 172) (5th Cir. decided under the name Genon West, L.P. v. NLRB December 14, 2012)

In a per curiam order, the Court enforced the Board’s order in full and denied the employer’s petition for review.  It affirmed the Board’s finding that the employer unlawfully withheld benefits to discourage unionization and ordered a contractor to remove a prounion activist from the facility. 

This case arose out of an organizing campaign that occurred after the employer took over operating one of its California plants from a unionized contractor.  After the employer hired a workforce consisting of both previously unionized employees of the contractor and new workers, the union began a campaign to represent the facility.  After an election was scheduled, the employer announced a new company-wide benefit plan, but withheld the benefits from the employees deciding on unionization, and implicitly promised them that they would receive the benefits if they voted against it.  The Board found that the employer’s actions violated both Section 8(a)(1) and 8(a)(3) of the Act.

At the same time, the employer asked a subcontractor performing maintenance at the facility to remove one of its employees because he was promoting unionization to unit workers.  Rejecting the employer’s claim that it could treat the subcontractor’s employee as a nonemployee because it did not directly employ him, the Board found that nonemployee cases—holding that, unlike employees working there, nonemployees generally do not have a right to access a plant to organize—“do not bear on the situation here, where a statutory employee has been retaliated against for engaging in protected concerted activity while at his workplace to perform work.”  The Board therefore concluded that the employer violated Section 8(a)(3) of the Act by discriminatorily causing its contractor to remove the employee to punish his union activity.

The Court enforced the Board’s order in a one-sentence per curiam order, which is available here.

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Ashland Facility Operations, Board Case No. 5-CA-60739 (reported at 357 NLRB No. 90) (4th Cir. decided December 14, 2012)

In a published opinion, the Court denied Ashland’s challenge to its employees’ selection of union representation, and enforced in full the Board’s order finding that it unlawfully refused to bargain.

In early 2010, a group of employees accused Ashland, a Richmond, Virginia-area nursing home, of racial discrimination in charging workers with theft, conducting unlawful strip searches, and locking workers in during a snowstorm.  The Virginia NAACP championed these allegations in a press conference at which the organization’s president stated that the complaining nurses “had been treated like ‘chattel enslaved captives,’ and that Ashland ... was a ‘cesspool of inhumanity that needs to be [tolled] and fixed.’”  The allegations were repeated in a local newspaper.  Around the same time, the Virginia NAACP’s president arranged for the employees to meet with the union’s vice president, who also happened to be a member of the NAACP’s board.  After that point, the Virginia NAACP had no contact with the union’s campaign. 

By September 2010, the union filed a petition for an election.  During the campaign, employees discussed the events of the prior spring, and Ashland held numerous captive audience meetings to explain its position against unionization and dispel lingering rumors about the discrimination allegations.  The union won the election, 31-28.  Ashland claimed that the Virginia NAACP was an agent of the union, that its remarks constituted inflammatory racial appeals under Sewell Manufacturing Co., 138 NLRB 66 (1962), and that the election should be thrown out.  The Board rejected the claim and certified the union, but Ashland refused to bargain and asked the Court to find the certification in error.

The Court enforced the Board’s Order.  First, it rejected Ashland’s claim that the Virginia NAACP was an apparent agent of the union, explaining that the Virginia organization “had no involvement in the campaign after June 2010, more than two months before the start of the critical period” and that the union did not rely on the Virginia NAACP to run its campaign, but instead employed three representatives to do so.  Thus, there was “ample factual basis to support the Labor Board’s finding that the Virginia NAACP was not the Union’s agent.”  Next, the Court rebuffed Ashland’s argument that, even if the Virginia NAACP was not a union agent, its statements were still objectionable racially inflammatory remarks.  As the Court stated, “Sewell is inapplicable for two reasons: (1) [the] comments were not ‘inflammatory’ appeals to racial prejudice,” because they were “made in the context of an effort to raise workplace grievances,” and “(2) Sewell does not govern appeals to racial prejudice made by third-parties.”  Finally, the Court agreed with the Board that, even assuming agency and impropriety, the fact that the purportedly objectionable comments were made outside the critical period between the filing of the petition and the election rendered any harm nugatory.  The Court also rejected an evidentiary challenge to the administrative law judge’s limitation a subpoena’s scope.

The Court’s published decision is available here

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Stevens Creek Chrysler Jeep Dodge, Board Case No. 20-CA-33367 (reported at 357 NLRB No. 57) (D.C. Cir. decided December 14, 2012 under the name Mathew Enterprise, Inc. v. NLRB)

In an unpublished judgment, the Court affirmed the Board’s finding that the employer unlawfully discharged a union activist, and therefore enforced the Board’s order in full.

In a 2006 organizing campaign at this California car dealership, the employer engaged in a host of unfair labor practices, most of which it did not challenge before the Board:  It required newly hired employees to renounce their union membership; interrogated an applicant about whether he was a union member; told another applicant that he was “blackballed” because of the union and would not be hired; granted wage increases to deter support for unionization; and threatened employees with job loss, wage reductions, and facility closure.  Before the Court, the employer only challenged the Board’s finding that it unlawfully discharged a prounion employee, claiming that it lawfully did so because of his attendance issues.  Although the Administrative Law Judge (ALJ) concluded that the employer proved that it would have discharged the employee in the absence of his union activity, the Board disagreed.  The Court affirmed the Board.  As it explained, “[e]ven taking full account of the disagreement between the Board and the ALJ . . . [w]e do not see this divergence as grounds for reversing the Board’s decision.”  Given the Court’s acceptance of the Board’s finding that the employer unlawfully discharged that union activist and the host of unchallenged other unfair labor practices, the Court enforced the Board’s Gissel order requiring the employer to bargain with the union.

The Court’s unpublished judgment is here.

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Medco Health Solutions of Las Vegas, Inc., Board Case No. 28-CA-22914 (reported at 357 NLRB No. 25) (D.C. Cir. decided December 14, 2012)

In a published decision, the Court upheld the Board’s finding that the employer violated Section 8(a)(5) of the Act by failing to bargain with the union before changing its pharmacists’ dress code to require them to wear lab coats during working hours and dress in business casual on days when client tours were scheduled.  The Court reversed the Board’s additional finding that the employer violated Section 8(a)(1) of the Act when it applied its dress code’s ban on “insulting language” to ban an employee from wearing a t-shirt protesting the employer’s new program recognizing employee contributions with what it called “WOW” awards.   Although the Court agreed with the Board that donning the t-shirt was concerted activity over working conditions, it found that the Board had not adequately explained its reasons for rejecting the employer’s claim that “special circumstances” justified the ban.  In reaching that conclusion, the Court emphasized that the shirt could be seen by customers who toured the facility, sometimes without notice, and that viewing the shirt could harm the employer’s relationships with those customers, to whom it had publicized the WOW program.

The Court’s opinion may be found here.

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Administrative Law Judge Decisions

Ace Masonry, Inc., d/b/a Ace Unlimited and Bella Masonry, LLC, alter egos (03-CA-073540, et al.; JD-65-12) Ithaca, NY.  Charges filed by International Union of Bricklayers and Allied Craftworkers, Local No. 3.  Administrative Law Judge Geoffrey Carter issued his decision on December 12, 2012.  

Local 342, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (20-CB-077499; JD(SF)-53-12) Concord, CA.  Charge filed by an individual.  Administrative Law Judge Gerald M. Etchingham issued his decision on December 14, 2012.

Horizon Lines of Puerto Rico, Inc. (24-CA-075533; JD(ATL)-34-12) San Juan, PR.  Charge filed by International Longshoremen Association, Local 1575.  Administrative Law Judge William N. Cates issued his decision on December 14, 2012.

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