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Summary of NLRB Decisions for Week of December 19-23, 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

Sweetwater Paperboard (10-RC-15820; 357 NLRB No. 142) Austell, GA, December 20, 2011.

The Board reversed the Hearing Officer and found merit in the Petitioner’s objection that, during the critical period, the Employer solicited grievances and promised to remedy them.  Consequently, the Board set aside the election results and directed a second election.

Petitioner – United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.  Hearing Officer’s decision issued on June 13, 2011. Chairman Pearce and Members Becker and Hayes participated.

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Room Store (The) (28-CA-22404, et al.; 357 NLRB No. 143) Mesa, AZ, December 20, 2011.

The Board found that the Employer violated the Act by maintaining or enforcing rules in its Superstition Springs store handbook that prohibit any type of negative energy or attitudes and threaten employees with suspension if they violate the rule; informing employees at its Superstition Springs store that they cannot talk to fellow employees about their terms and conditions of employment, and threatening to suspend, discharge, or take other disciplinary action against them for doing so; threatening to suspend employees in its Superstition Springs store for engaging in negative conversations with supervisors or employees regarding their terms and conditions of employment; and discharging two employees for engaging in protected concerted activity.  The Board also found that the Employer did not violate the Act by discharging a third employee; threatening to discharge that employee; or promulgating an overly broad rule at the Fiesta store prohibiting discussion of terms and conditions of employment.  Member Hayes found that the Superstition Springs handbook rule prohibiting any type of negative energy or attitudes did not on its face explicitly interfere with, restrain or coerce employees in the exercise of their Section 7 rights, but he did agree that the rule was unlawful because it has been applied to restrict the exercise of Section 7 rights.  In agreeing that the discharges of the two employees violated the Act, Member Hayes did not rely on the fact that the Employer changed its sales expectation from a companywide figure to a store specific average.

Charges filed by Individuals.  Administrative Law Judge Gregory Z. Meyerson issued his decision on April 16, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Columbus Transit, LLC (2-CA-39193, et al.; 357 NLRB No. 146) Mt. Vernon, NY, December 21, 2011.

The Board reversed the Administrative Law Judge’s dismissal of the Intervenor Union’s charge alleging that the Respondent violated Section 8(a)(5) of the Act by refusing to bargain following voluntary recognition.  In finding the violation, the Board explained that because an election had been held and the ballots counted, the retroactivity provision in Lamons Gasket, 357 NLRB No. 72 (2011), did not apply and the Respondent’s voluntary recognition of the Intervenor and refusal to bargain should be analyzed under Dana Corp., 351 NLRB 434 (2007).  Applying Dana Corp., the Board found that the Respondent had an obligation to bargain with the Intervenor, and the Petitioner’s subsequent petition did not extinguish that obligation.  The Board found that the Intervenor’s delay in requesting bargaining for almost four months following voluntary recognition was reasonable under the circumstances.  In a footnote, Member Hayes stated that he would adopt the judge’s dismissal of this allegation.

The Board then found that under Dana Corp., the Petitioner’s election petition was timely filed and rejected the Intervenor’s election objections.  The Board then found that the Section 8(a)(5) violation does not warrant overturning the election, given the Petitioner’s wide margin of victory, and lack of evidence that employees were aware of the violation. 

Charges filed by Transport Workers of Greater New York, Local 100, AFL-CIO; Petitioner – Local 713, United Brotherhood of Trade Unions, IUJAT, Intervenor.   Administrative Law Judge Raymond P. Green issued his decision on October 4, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Venetian Casino Resort, LLC (28-CA-16000; 357 NLRB No. 147) Las Vegas, NV, December 21, 2011.

The Board, in response to a remand by the D.C. Circuit (484 F.3d 601 (2007)), considered the issue of whether the Respondent’s summoning the police to remove demonstrators from a temporary sidewalk in front of its premises constituted direct petitioning of the government within the meaning of the Noerr-Pennington doctrine, and, as such, was shielded from NLRA liability.  Upon inquiry by the Respondent, after it learned that Clark County had granted the Union a permit to conduct a demonstration on the temporary sidewalk, both the County District Attorney and the Las Vegas Metropolitan Police Department advised that the sidewalk in question constituted a public forum pursuant to the First Amendment and that the demonstration could lawfully occur there.  On the day of the demonstration, however, the Respondent summoned the police to evict the demonstrators from the sidewalk.  Finding that “[t]he Noerr-Pennington doctrine protects a private party’s petitioning of Federal, State, or local Government for the purpose of influencing the passage or enforcement of laws or regulations[,]” the Board rejected the Respondent’s contention that its summoning of the police constituted a direct petition of Government shielded from liability under Noerr-Pennington.  The Board found that the Respondent’s summoning the police involved no effort to influence the passage of any law, or that its communication with the police involved any interaction with any official with policymaking authority.  The Board emphasized, however, that not before it was the question of whether the Respondent’s prior communications with the county district attorney and the police regarding its property claims constituted petitioning protected by Noerr-Pennington, and that there was no contention that the Respondent’s efforts to press its claims in the Federal courts violated the Act. 

Charge filed by Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226 and Bartenders Union, Local 165, affiliated with Hotel Employees and Restaurant Employees International Union.  Chairman Pearce and Member Becker and Hayes participated.

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DHL Express, Inc. (9-CA-46180, et al.; 357 NLRB No. 145) Erlanger, KY, December 22, 2011.

The Board found that the Employer violated Section 8(a)(1) of the Act by prohibiting employees from distributing union literature in the employer’s entrance hallway.  The Board found that the hallway was a mixed-use area and that the activities in the hallway were only incidental to the employer’s main function. The Board found it unnecessary to determine whether the Employer also violated Section 8(a)(1) by discriminatorily enforcing its no-distribution rule in the hallway.  Member Hayes would find that the hallway was a work area but would find that the Employer violated Section 8(a)(1) by discriminatorily enforcing the no-distribution rule.

Charges filed by the American Postal Workers Union, AFL-CIO.  Administrative Law Judge Bruce D. Rosenstein issued his decision on July 21, 2011.  Chairman Pearce and Members Becker and Hayes participated. 

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DirecTV U.S. DirecTV Holdings, LLC (21-RC-21191; 357 NLRB No. 149) Rancho Dominguez, CA, December 22, 2011.

A Board majority (Chairman Pearce and Member Becker) reversed the Hearing Officer and overruled the Employer’s election objection alleging that its field supervisors were statutory supervisors, and that their prounion conduct was objectionable under Harborside Healthcare, Inc., 343 NLRB 906 (2004).  Chairman Pearce and Member Becker concluded, contrary to the Hearing Officer, that the field supervisors did not possess the authority to effectively recommend discipline of the field technicians and, thus, were not statutory supervisors; accordingly, they further concluded that Harborside was not applicable, and that the field supervisors’ prounion conduct was not objectionable.  Member Hayes dissented, finding that the Employer established that the field supervisors possessed the authority to effectively recommend discipline and, accordingly, were statutory supervisors.  Member Hayes additionally indicated that he would find that the field supervisors’ prounion conduct was objectionable, and would set aside the election.

Petitioner – International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 947.  Hearing Officer issued the report on July 7, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Smurfit-Stone Container Enterprises (32-CA-24480, et al.;357 NLRB No. 144) Fresno, CA, December 22, 2011.

The Administrative Law Judge in this Section 8(a)(5) case dismissed the complaint, which had alleged primarily that the Respondent unlawfully conditioned a plant-closure effects agreement on the Union’s acceptance of a non-mandatory proposal: midterm cancellation of the parties’ collective-bargaining agreement. He concluded that the contract-termination proposal was converted into a mandatory subject by its relationship with other mandatory subjects under the parties’ consideration, and accordingly that the Respondent engaged in lawful bargaining conduct.

Reversing the judge, the Board found that the Respondent’s proposal remained a non-mandatory subject, and concluded that its insistence on that proposal violated Section 8(a)(5) and (1) under Wooster Division of Borg-Warner Corp. v. NLRB, 356 U.S. 342 (1958).

A Board majority determined that a limited back-pay remedy under Transmarine Navigation Corp., 170 NLRB 389 (1968), was appropriate for all 92 unit employees who were terminated sequentially over the course of 10 months pursuant to the process of closing the plant. Member Hayes, dissenting in part, observed that the General Counsel requested a Transmarine remedy only for the four employees terminated at the time the plant actually closed, and would have limited the make-whole remedy accordingly.

Charges filed by Teamsters District Council No. 2, Local 388-M, affiliated with International Brotherhood of Teamsters.  Administrative Law Judge Jay R. Pollack issued his decision on April 5, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Harborlite Corporation (27-CA-21386; 357 NLRB No. 151) Alamosa, CO, December 22, 2011.

The Board adopted the Administrative Law Judge’s finding that the Respondent violated the Act by threatening to lock out unit employees and permanently replace them unless they agreed to the Respondent’s last, best, and final contract offer.  The majority reversed the judge, however, and found that the Respondent did not violate the Act when it actually locked out the employees.  A few days after the lockout began the Respondent sent a letter to the Union stating that, “as a gesture of good will,” locked-out employees were temporarily replaced.  The letter encouraged employees to accept the Respondent’s contract offer so that employees could return to work.  Therefore, despite the Respondent’s antecedent threat to permanently replace them, the Respondent’s letter assured employees that replacements were temporary and that they would return to work by accepting the contract offer.  Locked-out employees would not be confused as to their bargaining status, and the lockout was lawful.

In dissent, Chairman Pearce found that the Respondent’s subsequent letter did not mitigate its previous threat to permanently replace locked-out employees.  Moreover, in its letter, the Respondent stated that employees were temporarily replaced “until further notice,” and the Respondent reserved its right to hire permanent replacements.  Under the circumstances, Chairman Pearce found that employees would have been confused about their bargaining status, and thus he would find the lockout unlawful.

Charge filed by Teamsters, Local 455.  Administrative Law Judge William G. Kocol issued his decision on March 8, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Demex Group, Inc. (33-CA-15956; 357 NLRB No. 141) Manito, IL, December 19, 2011.

The Acting General Counsel sought a default judgment in this case on the ground that the Respondent withdrew its answer to the complaint.  The Board ordered that the Respondent cease and desist from failing and refusing to bargain collectively and in good faith with the union; failing and refusing to adhere to the terms of the collective-bargaining agreement; and in any like or relating manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act.

Charge filed by Laborers’, Local 393.  Chairman Pearce and Members Becker and Hayes participated.

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Vocell Bus Company, Inc. (1-CA-45915, et al.; 357 NLRB No. 148) Malden, MA, December 21, 2011.

Order denying the Acting General Counsel’s motion for summary judgment and remanding theproceeding to the Regional Director for the purpose of issuing a notice of hearing and scheduling a hearing before an Administrative Law Judge.

Charges filed by International Brotherhood of Teamsters, Local 25.  Chairman Pearce and Members Becker and Hayes participated.

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Time Auto Transportation, Inc. and Time Auto Transport, L.S. (7-CA-43641; 357 NLRB No. 150) Troy, MI, December 22, 2011.

The Acting General Counsel sought default judgment in this case on the ground that the Respondents failed to file an answer to the reissued compliance specification.  The Board ordered that the Respondents make whole the Complainants by paying them the amount following their names, plus interest accrued to the date of payment, minus tax withholdings required by Federal and State laws.

Charge filed by Individuals.  Chairman Pearce and Members Becker and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Alta Bates Summit Medical Center (32-RC-5612) Oakland and Berkeley, CA, December 19, 2011.  Decision and certification of representative.  Petitioner – National Union of Healthcare Workers.  Chairman Pearce and Members Becker and Hayes participated.

Sims Group USA Corporation d/b/a Sims Metal Management (32-RD-067599) Stockton, CA, December 20, 2011.  Order denying Unions’ request for review of the Regional Director’s decision and direction of elections.  Petitioner – an Individual and Laborers, Local 886 and Northern California District Council of Laborers.  Chairman Pearce and Members Becker and Hayes participated.

Suiza Dairy Corporation, Group Gloria Holding Corporation (24-RC-61098) Ponce, PR, December 20, 2011.  Order rescinding decision and certification of representative and setting date to file exceptions.  Petitioner – Union de Tronquistas de Puerto Rico, Local 901, IBT. 

Fruitarom USA (21-RC-67799) Riverside, CA, December 21, 2011.  Order denying Employer’s request for review of the Acting Regional Director’s decision and direction of election.  Petitioner – Teamsters, Chauffeurs, Warehousemen, Industrial and Allied workers of America, Local 166, International Brotherhood of Teamsters.  Chairman Pearce and Members Becker and Hayes participated.

Volunteers of America Greater New York, Inc. (22-RC-67527) East Orange, NJ, December 23, 2011.  Order denying Employers request for review of the Regional Director’s decision and direction of election.  Petitioner – district 1199J, AFSCME, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

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C Cases

Berkshire Farm Centerand Services for Youth (03-CA-27701, et al.) Canaan, NY, December 19, 2011.  Order granting joint motion to remand cases to the Regional Director for approval to informal Board settlement agreement.  Charges filed by Service Employees International Union, Local 200.

United States Postal Service (15-CA-19942(P)) Destin, FL. December 19, 2011.  Decision and order pursuant to a settlement stipulation.  Charge filed by American Postal Workers, Playground Area, Local 5643.  Chairman Pearce and Members Becker and Hayes participated. 

PACCAR, Inc., d/b/a Peterbilt Motors Company (26-CA-23225) Madison, TN, December 20, 2011.  Order denying motion for reconsideration.  Charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and UAW, Local 1832.  Chairman Pearce and Members Becker and Hayes participated.

Long Mechanical, Inc. (7-CA-52917, et al.) Northville, MI, December 20, 2011.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.  Charges filed by Locals 98 and 636, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO.

Little River Band of Ottowa Indians Tribal Government (7-CA-51156) Manistee, MI, December 20, 2011.  Order approving stipulation, granting motion, and transferring proceeding to the Board.  Charge filed by Local 406, International Brotherhood of Teamsters.

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Appellate Court Decisions

Plaza Auto Center, Board Case No. 28-CA-22256 (reported at 355 NLRB No. 85) (9th Cir. decided December 19, 2011)

In a published opinion, the Ninth Circuit granted the employer's petition for review with respect to the Board’s finding that the employer unlawfully discharged an employee for engaging in protected concerted activity.  The Court characterized comments the employee made to the company’s president in the course of that otherwise-protected activity as "obscene, degrading, and insubordinate," and found the Board’s analysis of the employee’s conduct to be inconsistent with Board and D.C. Circuit precedent holding such comments "may weigh in favor of lost protection even absent a threat of physical harm."  Further, the Court concluded that the Board did not "give full effect to the Administrative Law Judge’s factual and credibility findings, including the finding that [the employee's] behavior was menacing or at least physically aggressive . . . ."  It therefore remanded the case to the Board for reconsideration with respect to the discharge.  The Court, however, granted summary enforcement to the Board's unchallenged finding that the employer violated the Act by inviting the employee to quit in response to his protected activities. 

The Court's opinion is available here.

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Snell Island SNF, LLC, Board Case No. 12-CA-25854 (reported at 356 NLRB No. 24) (2d Cir. decided December 20, 2011)

In an unpublished summary order, the Second Circuit enforced the Board's order directing the Company to bargain with the union, which had prevailed in a Board-conducted election.

The Court had previously enforced the order issued by the two-member Board.  SnellIslandSNF v. NLRB, 568 F.3d 410 (2d Cir. 2009).  Following New Process Steel, the Supreme Court vacated and remanded the case to the Court, which then remanded to the Board.  On remand, a three-member Board panel found, as the two-member Board had, that the underlying certification of the Union without a hearing was proper and that the Company unlawfully refused to bargain.  On appeal, the Court rejected the Company's challenge to the Board's overruling the election objections without a hearing and certifying the Union as bargaining representative, observing: "Neither the underlying facts nor the applicable legal standards have changed since we issued our opinion in 2009.  Accordingly, we hereby reaffirm our prior decision and conclude that the Board did not abuse its discretion by declining to conduct an evidentiary hearing in this case."  The Court also rebuffed the Company's claim that the Board's review following New Process Steel "amounted to a 'hasty rubber stamping of its prior decision." Instead, it held that, because the Company failed to bring its due process claims to the Board in a timely motion for reconsideration, under Section 10(e) of the Act, "the Company has forfeited its due process challenge."

The Court's order is available here

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Deming Hospital Corp., Board Case No. 28-CA-16762 (reported at 356 NLRB No. 103) (D.C. Circuit decided December 20, 2011)

In a published opinion, the D.C. Circuit agreed with the majority of the Board's computations in this backpay case, but vacated and remanded to the Board for further explanation of a single issue.

In 2004, the Board found that the Hospital unlawfully reduced respiratory department employees' hours from 40 per week to between 32 and 36 hours per week.  It ordered the Hospital to rescind and bargain over the change and to make affected employees whole for any loss of earnings and other benefits suffered.  The Tenth Circuit enforced the order.  A compliance hearing followed, in which the Board ordered the Hospital to pay a specific amount of backpay.  During the course of the hearing, the following issues arose, the Board resolved them, and the D.C. Circuit reviewed them, agreeing with the Board on two of three issues.

First, the Board concluded that interim earnings should not be deducted from the employees' backpay.  Relying on Ogle Protection Service, 183 NLRB 682 (1970), the Board held that interim earnings should not be deducted when loss of pay does not result from job loss, because the normal reasons that mitigation is required do not apply absent unemployment.  Here, the Hospital made an offer of proof that several employees took outside jobs to make up for the lost hours, thereby mitigating their damages, but the Board rejected the offer, citing Ogle and observing that employees have no duty to "moonlight" on their jobs to mitigate damages from reduced hours.  The Court, however, disagreed.  It differed with the Board's interpretation of Ogle, and, while agreeing that the Act places no duty to "moonlight," noted that "even when there is no duty to mitigate, the Board might in some circumstances be obliged to consider interim earnings to ensure that employees who did choose to find other work do not receive windfalls."  Thus, because "the Board's explanation for its refusal to consider interim earnings is inadequate . . . we remand for a more thorough analysis of this issue." 

Second, the Court agreed with the Board that employees hired after the unfair labor practices were also entitled to backpay.  As the Court explained (quoting the Board), "[b]ecause the Hospital still had not rescinded the unlawful hours reduction [when new employees were hired], the 'reimbursement remedy continue[d] to apply to each subsequently-hired employee.'" 

Third, the Court affirmed the Board's finding that that the Union did not toll backpay by refusing to bargain over the unilateral reductions.  Agreeing with the Board, the Court held that, because the Hospital had not rescinded its unlawful unilateral change, the Union had no obligation to bargain.  Otherwise, employers would "force unions to come to the bargaining table in a position of weakness." 

The Court's opinion is available here.

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Wayneview Care Center, Board Case No. 22-CA-26987 (reported at 356 NLRB No. 30) (D.C. Cir. decided December 23, 2011)

This case involved numerous unfair labor practices committed by two separate nursing homes that engaged in consolidated negotiations with the union that represented their employees.

The Court upheld as supported by substantial evidence the Board's finding that the employers and the union were not at a bargaining impasse when the employers unilaterally implemented their bargaining proposals, and that the employers' implementation of their proposals therefore violated Section 8(a)(5) of the Act.  In so ruling, the Court emphasized the administrative law judge's finding that the impasse declaration immediately followed a marathon bargaining session at which there had been significant movement on important issues, and rejected the employers' contention that the union had acted in bad faith, which was based on testimony discredited by the judge. 

The Court also upheld the Board's finding that the employers violated the Act by locking out their employees to coerce them into accepting the "so-called 'last best final offer,'" over which it had not bargained to impasse, finding that substantial evidence supported the Board's rejection of the employer's contention that the lockout was a lawful defensive action reasonably necessary to ensure continued patient care. 

The Court also upheld the Board's finding, based on credited and uncontradicted testimony, that one of the employers unlawfully assisted a decertification petition by promising an employee benefits if she signed the petition.  The Court additionally enforced the portions of the Board's order remedying various violations of the Act that the employers failed to contest before the Board or the Court. 

The Court's decision may be found here.

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Decisions of Administrative Law Judges

Professional Medical Transport Inc. (28-CA-023399, et al.; JD(SF)-49-11) Tempe, AZ.  Charges filed by Independent Certified Emergency Professionals of Arizona, Local 1.  Administrative Law Judge Lana Parke issued her decision December 20, 2011.

E.L.C. Electric, Inc. and its alter ego and/or Successor Midwest Electric & Retail Contractors, Inc., d/b/a Merc, Inc. and Asset Management Partners, Inc. a single integrated enterprise and single employer, and Edward L. Calvert, Individually (25-CA-28283-1 et al.; JD-76-11) Indianapolis, IN. Charges filed by International Brotherhood of Electrical Workers, Local 481, a/w International Brotherhood of Electrical workers, AFL-CIO.  Administrative Law Judge Ira Sandron issued his decision December 20, 2011.

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