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Summary of NLRB Decisions for Week of December 17-21, 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

WKYC-TV, Inc. (08-CA-039190; 359 NLRB No. 30) Cleveland, OH, December 12, 2012.

The Board – in response to concerns raised by the Ninth Circuit (657 F.2d 865) and its own 15‑year dialogue in the Hacienda trilogy of cases (331 NLRB 665; 351 NLRB 504; and 355 NLRB 742) – reexamined whether an employer’s obligation to check off union dues from employees’ wages terminates upon expiration of a collective-bargaining agreement that establishes such an arrangement (known as the Bethlehem Steel rule).  The Board concluded that the holding in Bethlehem Steel was unsupportable because it was based on questionable reasoning, was inconsistent with established policy generally condemning unilateral changes in terms and conditions of employment, was contradicted by both the plain language and legislative history of the only statutory provision addressing dues checkoff, and had no justification in the policies of the Act.  The Board accordingly held that an employer, following contract expiration, must continue to honor a dues-checkoff arrangement established in that contract until the parties have either reached agreement or a valid impasse permits unilateral action by the employer.  Because employers have long relied on the Bethlehem Steel rule, the Board determined that it would be unjust to apply this new holding in pending cases, i.e., the Board will apply this new standard only prospectively.  The Board thus dismissed the complaint allegation that the employer violated Section 8(a)(5) when it unilaterally ceased honoring the parties’ dues-checkoff  arrangement following contract expiration.  Member Hayes dissented, finding that the Board should continue to follow the Bethlehem Steel rule.   

Charge filed National Association of Broadcast Employees and Technicians, Local 42, a/w Communications Workers of America, AFL-CIO.  Chairman Pearce and Members Hayes, Griffin, and Block participated.

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Big Moose, LLC  (15-CA-019735 et al, 359 NLRB No. 31) New Orleans, LA, December 13, 2012.

The Board unanimously adopted the administrative law judge’s findings that the union violated Section 8(b)(1)(A) and (2) of the Act by causing Big Moose to discharge Humberto Recio on March 11, 2010, and that Big Moose violated Section 8(a)(3) and (1) by discharging Recio on that date.  The Board further adopted the judge’s findings that Big Moose violated Section 8(a)(1) when its supervisor, Earl Woods, told Recio on March 11 that he could not work for Big Moose until he transferred his union membership, that the union violated Section 8(b)(1)(A) by telling Recio on March 17 that he could not work within the union’s jurisdiction until he completed his transfer application, and that the union violated Section 8(b)(1)(A) by causing Recio thereafter to turn down employment opportunities.  The Board majority (Members Hayes and Block) vacated the judge’s dismissal of the allegation that the union caused Recio’s discharge a second time on April 28, 2010, finding that the record was unclear as to whether Recio was discharged or quit on that date.  The majority remanded that issue to the judge for further consideration.  Member Griffin dissented, and would have adopted the judge’s dismissal of the second unlawful discharge allegation.

Charges filed by an individual.  Administrative Law Judge Michael A. Marcionese issued his decision on February 2, 2012.  Members Hayes, Griffin, and Block participated.

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Fred Meyer Stores, Inc. (36-CA-010555; 359 NLRB No. 34) Hillsboro, OR, December 13, 2012.

The Board found that the employer violated Section 8(a)(5) of the Act when it unilaterally altered terms and conditions of employment by limiting the right of union representatives to contact store employees, and that it violated Section 8(a)(1) when it prohibited union representatives and employees from talking on the store floor, disparaged the union in the presence of employees, threatened to have union representatives arrested or removed from the store, called police to the store, and caused the arrest of three union representatives.  Regarding the 8(a)(5) violation, the Board majority agreed with the administrative law judge’s finding that the union’s bringing 8 representatives to the 165-acre store to talk in pairs to employees about negotiations did not extinguish the union’s visitation rights because the contract did not limit the number of union representatives, the manager was aware of the presence of only 2 union representatives when he imposed the limitation, and there was no evidence they disrupted operations.  Member Hayes dissented and would have found that the employer’s conduct was lawful because it acted in response to the union’s own unilateral breach of the visitation policy and departure from past practice. 

Charge filed by Electrical Workers, Local 555, affiliated with United Food and Commercial Workers International Union.  Administrative Law Judge Clifford H. Anderson issued his decision on December 8, 2010.  Chairman Pearce and Members Hayes and Griffin participated.

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Dish Network Corporation (16-CA-027316, et al.; 359 NLRB No. 32) North Richland Hills, TX, December 13, 2012. 

The Board denied the union’s motion for reconsideration, in which it asked the Board to reconsider Tri‑Cast.  In its original decision, the Board had affirmed the administrative law judge’s decision that, under Tri‑Cast, the employer, Dish Network Corporation, did not violate Section 8(a)(1) of the Act by informing its employees, in writing, that “[i]f a workplace is union, you have to go to your steward with your complaints, and he decides whether to bring them to the company’s attention, not you. He controls your fate, not you.”  In denying the motion, the majority noted that the original panel erred insofar as it appeared to hold that the Board lacked the authority to overrule precedent on its own initiative, i.e., without a specific request to do so from one of the parties.  Instead, the Board could have revisited the validity of the Tri‑Cast decision in the initial case, but it chose not to do so.  And, in the exercise of its discretion, the Board was declining to take up the issue by denying the motion for reconsideration. 

Member Hayes concurred in part and dissented in part.  He agreed with the Board majority that the charging party had not shown that extraordinary circumstances existed warranting reconsideration of the Board’s decision.  He dissented from their declaration that the Board possessed broad discretion to reconsider and overrule its precedent on its own.

Charges filed by Communication Workers of America, Local 6171.  Administrative Law Judge George Carson II issued his decision on August 11, 2011.  Chairman Pearce and Members Hayes and Block participated.

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Nebraskaland, Inc. (02-CA-039996; 359 NLRB No. 35) Bronx, NY, December 13, 2012.

The Board adopted the administrative law judge’s conclusion that the respondent did not violate the Act by unilaterally ending its compliance with the dues-checkoff provision of the parties’ collective-bargaining agreement following the expiration of the agreement.  Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), affd. in relevant part sub nom. Industrial Union of Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964).  In WKYC-TV, 359 NLRB No. 30 (2012), which issued the same day as this case, the Board reversed Bethlehem Steel and its progeny, to find that a similar unilateral change was unlawful.  However, the Board decided to apply the new rule only prospectively.  Therefore, the Board applied Bethlehem Steel and dismissed the complaint. 

Member Hayes disagreed with the Board’s reversal of Bethlehem Steel precedent in WKYC-TV; however, he concurred in the result in this case because the Board applied Bethlehem Steel.

Charge filed by Local 342, United Food and Commercial Workers International Union.  Administrative Law Judge Steven Davis issued his decision on November 30, 2011.  Members Hayes, Griffin, and Block participated.

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USIC Locating Services, Inc. (06-CA-037328, 359 NLRB No. 33) Bridgeville, PA, December 14, 2012.

The Board adopted the administrative law judge’s finding, relying on Bethlehem Steel, 136 NLRB 1500, 1502 (1962), affd. in relevant part sub nom. Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964), that the employer did not violate the Act by ceasing to honor employees’ dues-checkoff authorizations after the expiration of the parties’ collective-bargaining agreement.  The Board noted that although in WKYC-TV, Inc., 359 NLRB No. 30 (2012), it overruled Bethlehem Steel and its progeny “to the extent they stand for the proposition that dues checkoff does not survive contract expiration,” it did so prospectively only.  359 NLRB No. 30, slip op. at 8-9.  Accordingly, the Board adopted the judge’s finding that, because the employer was privileged under Bethlehem Steel to cease honoring the dues-checkoff arrangement after the expiration of the parties’ collective-bargaining agreement, the employer did not violate the Act as alleged.  Member Hayes added a personal footnote stating that he concurred in the result in light of the dismissal of the complaint.  He further stated that he would adhere to Bethlehem Steel and its progeny for the reasons set forth in his dissent in WKYC-TV, and that he did not rely on the judge’s discussion questioning the soundness of the reasoning behind the Bethlehem Steel line of cases.

Charge filed by Communications Workers of America, Local 13000, AFL-CIO, CLC.    Administrative Law Judge David I. Goldman issued his decision on January 10, 2012.  Chairman Pearce and Members Hayes and Griffin participated.

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United Nurses and Allied Professionals (Kent Hospital) (01‑CB‑011135; 359 NLRB No. 42) Providence, RI, December 14, 2012.

The Board addressed several novel issues involving nonmember dues objectors. First, the Board found that the union did not violate the Act by failing to provide the charging party, a nonmember objector, with an audit verification letter. The Board reasoned that the duty of fair representation did not impose a per se obligation on unions to provide objectors with such a letter.  Member Hayes, dissenting, would have found a violation.

Second, the Board addressed whether the union unlawfully charged the charging party for expenses the union incurred while lobbying in favor of bills pending in the Rhode Island and Vermont legislatures. The Board held that lobbying expenses are chargeable to objectors to the extent they are germane to collective bargaining, contract administration, or grievance adjustment. It further held that otherwise germane lobbying activities are chargeable even if they are extra-unit, provided that the expenses are reciprocal in nature, i.e. that the contributing local reasonably expects other locals to contribute similarly on its behalf.  Because the Board had never substantively addressed the extent to which lobbying expenses are germane for the purposes of chargeability, it invited briefing to provide the parties and amici an opportunity to assist it in giving content to this framework. Member Hayes, dissenting, disagreed with the Board’s standard for chargeability of lobbying expenses and would have found that there are only very limited circumstances, if any, in which lobbying expenses may be chargeable.  He also would have found that there was no need for further briefing and analysis of any of the lobbying activities at issue in this case because none of them could reasonably relate to the union’s performance of its representational duties.

Charge filed by an individual.  Administrative Law Judge Joel P. Biblowitz issued his decision on March 30, 2011.  Chairman Pearce and Members Hayes, Griffin, and Block participated.

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Sabo, Inc. d/b/a Hoodview Vending Co. (36-CA-010615; 359 NLRB No. 36) Tualatin, OR, December 14, 2012.

The Board found that the employer violated the Act by discharging an employee for discussing job security with another employee.  In the conversation at issue, the employees discussed whether an internet job posting meant that one of the employer’s employees would be discharged.  Although the conversation did not contemplate future activity, the Board found that the conversation constituted protected concerted activity because conversations about job security, like conversations about wages, are inherently concerted.  The Board also found that the employer had not shown that it would have discharged the employee in the absence of the conversation.  Dissenting, Member Hayes would have found that the conversation was not concerted, would not have extended the inherently concerted doctrine to discussions of job security, and called for overruling the inherently concerted doctrine. 

Charge filed by Association of Western Pulp and Paper Workers Union, affiliated with United Brotherhood of Carpenters and Joiners of America. Administrative Law Judge Lana H. Parke issued her decision on November 30, 2010.  Chairman Pearce and Members Hayes and Griffin participated.

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Hispanics United of Buffalo, Inc. (03-CA-027872; 359 NLRB No. 37) Buffalo, NY, December 14, 2012

The decision by the Board majority found, in agreement with the administrative law judge, that five employees engaged in protected concerted activity by posting comments on Facebook that responded to a co-worker’s criticism of their job performance.  Accordingly, the Board adopted the judge’s finding that the respondent violated Section 8(a)(1) of the Act by discharging the employees based on their Facebook comments.  Member Hayes dissented.  He found that the employees’ Facebook postings constituted mere “venting to one another” and that their actions were not undertaken for their “mutual aid and protection” as required by Section 7 of the Act.  Therefore, he would have dismissed the complaint.

Charge filed by an individual.  Administrative Law Judge Arthur I. Amchan issued his decision on September 2, 2011.  Chairman Pearce and Members Hayes, Griffin, and Block participated.

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Hawaii Tribune-Herald  (37‑CA‑007043, et al.; 359 NLRB No. 39) Hilo, HI, December 14, 2012. 

The Board found that the respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide the union with a statement given by an employee as part of the respondent’s investigation of another employee’s alleged misconduct.  The Board had severed this issue in its original decision in this case (356 NLRB No. 63 (2011)).  After allowing the parties and interested amici to submit briefs on this issue, the Board found that (1) the employee’s statement was not a witness statement exempt from disclosure under Anheuser-Busch, 237 NLRB 982 (1978) because the respondent did not give any assurance of confidentiality; and (2) the attorney work-product privilege did not protect the statement from disclosure because there was no evidence that the respondent prepared it in anticipation of litigation. 

Charges filed by Hawaii Newspaper Guild, Local 39117, Communications Workers of America, AFL–CIO.  Administrative Law Judge John J. McCarrick issued his decision on March 6, 2008.  Chairman Pearce and Members Griffin and Block participated.

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Chicago Mathematics & Science Academy Charter School, Inc., Employer (13‑RM‑001768; 359 NLRB No. 41) Chicago, IL, December 14, 2012.

The Board found that the employer, a private, nonprofit corporation that established and operates a public charter school in Chicago, Illinois, is not exempt from the Board’s jurisdiction because the employer is not a political subdivision of the State of Illinois within the meaning of Section 2(2) of the National Labor Relations Act.  The Board applied the two-part test set out in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971) (Hawkins County).  Under that test, an entity may be considered a political subdivision if it is either (1) created directly by the state so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.  Applying these criteria, the Board found that the employer is not a political subdivision under the first analytical prong of Hawkins County because it was not created by any government entity, statute, or public official.  The Board found that the employer was established by private individuals as a nonprofit corporation under the Illinois General Not-for-Profit Act and only after it was established and incorporated did the employer establish a charter school following the process set out in the Illinois Charter Schools Law.  The Board further found that the employer is not a political subdivision under the second analytical prong of Hawkins County because it is not administered by individuals who are responsible to public officials or the general electorate.  The Board found that the members of the employer’s board of directors are appointed by and subject to removal only by private individuals and not by public officials.   The Board majority found no policy reasons to exercise its discretion and decline to assert jurisdiction over the employer.  Member Hayes, dissenting in part, would decline to assert jurisdiction based on the employer’s official status as a public school, its integrated and highly regulated relationship with the State of Illinois and the Chicago Public Schools system, and its fundamentally local nature. 

Petitioner - Chicago Alliance of Charter Teachers & Staff, IFT, AFT, AFL-CIO.  Chairman Pearce and Members Hayes, Griffin, and Block participated.

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Supply Technologies, LLC  (18-CA-019587; 359 NLRB No. 38) Minneapolis, MN, December 14, 2012.

The Board majority (Members Griffin and Block) adopted the administrative law judge’s decision that the respondent violated the Act by instituting and maintaining a mandatory grievance-arbitration program that prohibited or restricted employees’ Section 7 right to file unfair labor practice charges or otherwise access the Board’s processes.  It further found that the respondent unlawfully threatened employees with discharge if they did not sign and accept the unlawful policy, and, thereafter, unlawfully discharged 20 employees because they refused to sign the policy.  Applying the Board’s test for determining if an employer’s work rule unlawfully interfered with employee’s Section 7 rights set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004), the Board majority agreed with the judge that employees would reasonably construe the agreement’s language to prohibit them from filing Board charges or otherwise accessing the Board’s processes.  The Board ordered the respondent to rescind the grievance –arbitration program and to reinstate and make whole the 20 employees who were discharged for failing to sign the unlawful agreement.

Dissenting, Member Hayes argued that employees would not be confused about whether the employer’s grievance-arbitration agreement interfered with their Section 7 right of access to the Board.  He further argued that the Board majority’s result both distorts the Board’s test for determining whether a work rule that does not explicitly restrict Section 7 rights is nevertheless unlawful and signals the Board’s continued reluctance to endorse any form of mandatory alternative dispute resolution encompassing statutory claims for individual workers in a nonunion setting.

Charge filed by Teamsters, Local 120.  Administrative Law Judge George Alemán issued his decision on May 31, 2011.  Members Hayes, Griffin, and Block participated.

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Latino Express, Inc. (13‑CA‑046528, et al.; 359 NLRB No. 44) Chicago, IL, December 17, 2012.

In this supplemental decision and order, the Board adopted two proposed remedies designed to ensure discriminatees are truly made whole.  First, the Board ordered the respondent to file a report with the Social Security Administration allocating the discriminatees’ backpay to the appropriate calendar periods.  Second, the Board ordered the respondent to compensate the discriminatees for the excess income tax they might owe because they received a backpay award covering more than one year in one tax year.  The Board decided to apply the Social Security reporting requirement retroactively to all pending cases and the income tax component retroactively to all pending cases not already in the compliance stage of proceedings.

Charges filed by individuals and International Brotherhood of the Teamsters, Local 777.  Administrative Law Judge Michael A. Rosas issued his decision on July 12, 2011, and the Board issued an initial decision on July 31, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Lifesource (13-CA-091617; 359 NLRB No. 45) Rosemont, IL, December 21, 2012. 

Having found that the respondent violated the Act, the Board ordered it to cease and desist, to bargain on request with the union and, if an understanding is reached, to embody the understanding in a signed agreement.

Charge filed by Local 881, United Food and Commercial Workers.  Chairman Pearce and Members Griffin and Block participated.

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This case involved prior rulings by the two-member Board, whose authority to act was rejected by the U.S. Supreme Court decision in New Process Steel, LP (June 17, 2010).

Alan Ritchey, Inc. (32-CA-018149, et al.; 359 NLRB No. 40) Richmond, CA, December 14, 2012.

Deciding an issue that the Board had never before fully addressed, the Board concluded (contrary to the prior two-member Board) that discretionary discipline is a mandatory subject of bargaining, like other terms and conditions of employment, and that, consistent with precedent regarding other mandatory subjects of bargaining, employers may not impose certain types of discipline unilaterally.  In reaching this conclusion, the Board overruled its decision in Fresno Bee, 337 NLRB 1161 (2002), on which the two-member decision had relied.  Nevertheless, based on the unique nature of discipline and the practical needs of employers, the Board imposed a more limited bargaining obligation than that which applies to other terms and conditions of employment.  In addition, the Board applied its holding on this issue prospectively; thus, it dismissed the allegations that the employer acted unlawfully by unilaterally imposing the disciplinary actions at issue.

The Board also adopted the administrative law judge’s finding that the respondent did not discriminate in violation of Section 8(a)(3) of the Act by imposing the disciplinary actions, as well as adopting his findings that the respondent committed numerous violations of Section 8(a)(5), including bargaining in bad faith, dealing directly with employees and making numerous unilateral changes. The Board modified some of the judge’s findings concerning the respondent’s unilateral changes, however, as the two-member decision had.  In addition, the Board adopted and incorporated by reference the portion of the two-member decision that had remanded to the judge the allegation that the respondent violated Section 8(a)(5) by more strictly enforcing its efficiency standards for inspectors; in response to the remand, the judge had issued a supplemental decision dismissing that allegation, which the Board had adopted on April 27, 2010 in the absence of exceptions.

Charges filed by Warehouse Union Local 6, International Longshore and Warehouse Union. Administrative Law Judge Burton Litvack issued his decision on April 19, 2002. Chairman Pearce and Members Griffin and Block participated.  Member Hayes was recused from the case and did not participate.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Lintrac Services, Inc. (13-RC-089915) Northlake, IL, December 19, 2012.  Order denying the petitioner’s petition to revoke subpoena duces tecum.  Petitioner – International Brotherhood of Teamsters, Local 710.  Chairman Pearce and Members Griffin and Block participated.

Front Row Produce, LLC  (14-RC-089354) St. Louis, MO, December 20, 2012.  Having no exceptions filed, the Board adopted the Regional Director’s findings and recommendations, and found that a certification of results of election should be issued.  Petitioner – Local 688, International Brotherhood of Teamsters affiliated with International Brotherhood of Teamsters.

C Cases

Dupont Chemical Solutions Enterprise (03-CA-027828, et al.) Niagara Falls, NY, December 18, 2012.  Order granting the joint motions of the respondent, the charging party, and counsel for the Acting General Counsel to withdraw previously-filed motion to transfer proceedings and to remand the two cases to the Regional Director for the purpose of approving a non-Board settlement.  Charges filed by United Steel Workers (United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industry.

BCI Coca-Cola Bottling Company of Los Angeles d/b/a Coca-Cola Bottling Company of Arizona (28-CA-022792) Tempe, AZ, December 18, 2012.  Order denying the respondent’s motion to strike the Acting General Counsel’s exceptions to bench decision of administrative law judge.  Charge filed by an individual.

NTN Bower Corporation (10-CA-038816) Hamilton, AL, December 18, 2012.  Order granting the parties’ joint motion seeking remand of matter to the Regional Office for further appropriate action.  Charge filed by an individual.

Michels Corporation (30-CA-081206) Brownville, WI, December 19, 2012.  Order granting the Acting General Counsel’s request to grant special permission to appeal the administrative law judge’s approval of the settlement agreement and revoking the judge’s approval and the proceeding remanded to the judge for further processing without prejudice to further settlement negotiations.  Charge filed by International Union of Operating Engineers, Local 139, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

North American Signs, Inc. (25-CA-074185) South Bend, IN, December 19, 2012.  Order having no statement of exceptions filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and the recommended order of the administrative law judge become the order of the Board.  Charge filed by International Brotherhood of Electrical Workers, Local 153, AFL-CIO.

East-West University, Inc. (13-CA-072703, et al.) Chicago, IL, December 19, 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 United Adjunct Faculty Association at East-West University, IEA-NEA.  Chairman Pearce and Members Griffin and Block participated.

Union of Union Staff (The) (SEIU Healthcare Michigan) (07‑CB‑079543) Detroit, MI, December 21, 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 an individual.

Bluefield Hospital Company, LLC, d/b/a Bluefield Regional Medical Center  (10‑CA‑093042, et al.) Bluefield, WV, December 21, 2012.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted and ordered proceeding be transferred to and continued before the Board in Washington, DC.

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Appellate Court Decisions

Ampersand Publishing, LLC, Board Case No. 31-CA-27950 (reported at 357 NLRB No. 51) (D.C. Cir. decided December 18, 2012)

In a published decision, the D.C. Circuit granted the newspaper-employer’s petition for review in this antiunion discrimination case, concluding that providing statutory protection to the employee-reporters’ demands for editorial change would conflict with the newspaper’s First Amendment rights.

The employer is a newspaper in Santa Barbara, California.  A change of ownership in 2000 sparked clashes between the reporting staff and the new management.  Those battles intensified in 2006 with “’a series of management decisions . . . that led employees to believe that the new publishers were inappropriately interfering with the work of the employees on the news-gathering side of the paper.’”  For instance, reporters and publishers clashed over reporting an editor’s arrest for drunk driving, which resulted in the newspaper issuing an order forbidding the unauthorized disclosure of any proprietary or personnel information.  That rule, in turn, led to the resignation of more than a dozen employees.  Shortly thereafter, several reporters met with the union, and ultimately presented four demands to the newspaper:  (1) To “restore journalism ethics” by implementing “a clear separation between the opinion/business side of the paper and the news-gathering side”; (2) invite back some of the editors who resigned; (3) negotiate a contract “governing our hours, wages, benefits, and working conditions”; and (4) recognize the union.  To support those demands, employees held a series of rallies, that, according to the Court, focused on the demand for journalistic integrity; at these rallies, reporters distributed subscription cancellation cards to pressure the newspaper to accede to their demands.  During the course of this dispute, the newspaper discharged nine employees, cancelled another’s column, and lowered four others’ evaluations.  The Board found that the employer engaged in all of those acts to punish the reporters for their organizing and other protected activities and rejected the newspaper’s claim that the First Amendment’s free press guarantee precluded the Act’s application to employee demand for journalistic autonomy.

On appeal, the Court agreed with the newspaper and reversed the Board.  In essence, the Court held: “Given the publisher’s First Amendment rights, issues of what is published and not published are not generally a ‘legitimate employee concern[]’ for purposes of § 7’s protection.  The reporters and the Board are of course free to characterize these issues as ones of reporter ‘autonomy’ and ‘journalism ethics’ for their own purposes, but the power to so characterize them is not a power to conjure editorial control out of the publisher’s hands.”  The Board attempted to explain that the reporters’ demands for editorial changes might be considered only a permissive subject of bargaining over which a certified union could not insist on negotiating or striking; because the Act would not protect those demands, there would be no danger of government compulsion.  The Court, however, rejected that argument as speculative, noting that the present order “sanctions [the newspaper] for trying to discipline employees who sought to remain on its payroll and at the same time call on newspaper readers . . . to cancel their subscriptions because [the newspaper] would not knuckle under to the employees’ demands for editorial control.”  Moreover, the Court dismissed the Board’s conclusion that, even if journalistic autonomy was an unprotected part of the campaign, the reporters’ simultaneous demands for better working conditions saved their campaign.  Instead, the Court concluded that the record “makes clear that autonomy was the focus of the campaign,” and, in any event, it did not think “that employees can extend § 7’s protections by wrapping an unprotected goal in a protected one, by tossing a wage claim in with their quest for editorial control.”  Finally, rebuffing the Board’s finding that the newspaper’s concern with journalistic autonomy was merely a pretext to hide its antiunion animus, the Court retorted that “the Board’s analysis was tainted by its mistaken belief that employees had a statutorily protected right to engage in collective action aimed at limiting [the newspaper’s] editorial control.”  Finding the reporters’ actions statutorily unprotected, the Court denied enforcement of the Board’s order in full without considering the merits of each individual violation. 

The Court’s opinion is available here

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Administrative Law Judge Decisions

Flamingo Las Vegas Operating Company, LLC (28‑CA‑077145, et al; JD(SF)‑56‑12) Las Vegas, NV.  Charges filed by International Union, Security, Police and Fire Professionals of America (SPFPA).  Administrative Law Judge Gerald A. Wacknov issued his decision on December 18, 2012.

IMI South, LLC, d/b/a Irving Materials (09-CA-073769, et al.; JD‑67‑12) Louisville, KY.  Charges filed by General Drivers, Warehousemen and Helpers, Local 89 affiliated with International Brotherhood of Teamsters (The).  Administrative Law Judge Arthur J. Amchan issued his decision on December 18, 2012.

International Brotherhood of Teamsters, Local 727 (Global Experience Specialists, Inc.) (13‑CB‑073396; JD(ATL)‑35‑12) Hodgkins, IL.  Charge filed by an individual.  Administrative Law Judge Margaret G. Brakebusch issued her decision on December 18, 2012.

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