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Summary of NLRB Decisions for Week December 27-30, 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

Lancaster Symphony Orchestra (04-RC-21311, 357 NLRB No. 152) Lancaster, PA, December 27, 2011.

The Board, 2-to-1, found that musicians playing for symphony orchestras in Pennsylvania, Massachusetts and Texas are employees, not independent contractors, and therefore are eligible to vote on whether they want union representation. For that reason, the Board reversed the Regional Director’s decision to dismiss an election petition and sent the case back to the region for further action. The majority – Chairman Mark Gaston Pearce and Member Craig Becker - examined numerous factors and found they weighed heavily in favor of employee status. For instance, although musicians have some control over their work by choosing whether or not to bid on programs, “once they are selected to work in relation to a particular program, the musicians’ control over their work time ends.” The Board noted that orchestra management sets work hours, payment schedules, dress codes and standards for behavior, among other things. The Board also found that the musicians do not enjoy entrepreneurial opportunity or suffer risk because their fees are set and cannot be negotiated.

In his dissent, applying the same multi-factor analysis as the majority, Member Brian Hayes found the factors to weigh strongly in favor of finding the musicians to be independent contractors. As to the right of control factor, Member Hayes argued that, under Board precedent, the relevant question is “whether the musicians retain discretion to accept or decline to work with the employer and to play elsewhere,” and concluded that, in this case, they do. In addition, he found that the musicians’ freedom to take as many or as few jobs as desired and to work for various employers demonstrated their entrepreneurial opportunity for gain.

Petitioner - The Greater Lancaster Federation of Musicians, Local 294, AFM, AFL-CIO. The Regional Director issued her decision on July 27, 2007. Chairman Pearce and Members Becker and Hayes participated.

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A.D. Conner Inc., Gas City, LTD., Heidenreich Trucking Company, McEnery Enterprises, McEnery Trucking & Leasing, LLC, et al. (13-CA-46359, et al.; 357 NLRB No. 154) Frankfort, IL, December 28, 2011.

The Board adopted the Administrative Law Judge’s findings that Conner and Heidenreich were alter egos and his findings that Conner (1) violated Section 8(a)(1) of the Act by threatening to close its facilities and soliciting employees to decertify the Unions and (2) violated 8(a)(3) by ceasing operations, discharging its employees, and transferring its operations to Heidenreich.  No exceptions were filed to the judge’s finding that Conner, Heidenreich, and three other related companies constituted a single employer.  The Board adopted the judge’s finding that the single-employer Respondents violated 8(a)(5) by failing to bargain in good faith with the Unions and by dealing directly with employees.  In the absence of exceptions, the Board adopted the judge’s findings that the Respondents further violated 8(a)(5) by refusing to recognize the Unions as the employees’ representatives, refusing to bargain about the effects of the shut down, repudiating their obligations under the collective-bargaining agreements, and refusing to provide information to Local 705. 

Charges filed by Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Locals 142 and 705, affiliates of The International Brotherhood of Teamsters.  Administrative Law Judge Paul Buxbaum issued his decision on June 24, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Atlas Refinery, Inc. (22-CA-28403; 357 NLRB No. 155) Newark, NJ, December 29, 2011.

The Board granted the Acting General Counsel’s unopposed“Motion to Reaffirm Two-Member Board Decision” in a case reported at 354 NLRB No. 120, which issued January 15, 2010. In his motion, the Acting General Counsel contended that the Respondent had not fully complied with some of the affirmative relief ordered by the Administrative Law Judge and adopted by the two sitting Board members. In the underlying decision, the two-member Board adopted the judge’s findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain  with the Union’s chosen bargaining representatives in negotiating for a new collective-bargaining agreement; implementing its final contract proposal when the parties were not at impasse; locking out unit employees unless they agreed to work under its unlawfully implemented proposal; and withdrawing recognition from the Union based on resignation letters that the Respondent itself had solicited from unit employees.  The Board further found that the Respondent violated Section 8(a)(3) and (1) by discharging locked-out employees and violated Section 8(a)(1) by giving returning employees the resignation letters to sign and by threatening another employee that he would be terminated if he did not come to work under the Respondent’s new terms. The Board let stand the judge’s denial of the General Counsel’s post-hearing motion to amend the complaint to allege unlawful direct dealing.

Charges filed by Local 4-406, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO.  Administrative Law Judge Michael A. Rosas issued his decision on August 7, 2009.  Chairman Pearce and Members Becker and Hayes participated.

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Enterprise Leasing Company–Southeast, LLC (11-RC-06746, 357 NLRB No. 159) Raleigh-Durham, NC, December 29, 2011.

The Board adopted the Hearing Officer’s findings and recommendations to overrule the Employer’s election objections.  The Board’s decision largely focused on Employer Objection No. 4.  During the election campaign, the Union used an employee’s photograph on a flyer without his permission.  The Board concluded that, assuming this unauthorized use was a misrepresentation, it should be judged under the standard in Midland National Life Insurance Co., 263 NLRB 127 (1982).  Applying that standard, the Board found that the Employer had not presented any evidence that the Union’s flyer misrepresented the employee’s support for the Union.  The Board also found that there was no forgery involved, that employees could easily identify the flyer as campaign propaganda and that any misrepresentation was not pervasive. 

Member Hayes dissented concluding that the Union’s unauthorized use of the employee’s photograph violated his Section 7 rights to choose whether, and to what extent, to become involved in a representation campaign.  Further, Member Hayes found that the Union’s conduct reasonably tended to interfere with employee free choice and constituted objectionable conduct.  He judged the Union’s unauthorized use of an employee photograph under Allegheny Ludlum Corp., 333 NLRB 734 (2001), enfd. 301 F. 3d 167 (3d Cir. 2002) rather than Midland National.

Petitioner – International Brotherhood of Teamsters, Local 391.  The Hearing Officer issued the report on February 7, 2011.  Chairman Pearce and Members Becker and Hayes participated. 

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Omaha-World Herald (17-CA-24389; 357 NLRB No. 156) Omaha, NE, December 29, 2011.

A Board majority (Members Becker and Hayes) reversed the Administrative Law Judge and found that the Employer did not violate Section 8(a)(5) of the Act when, during the term of the parties’ contract, it froze accrual of benefits in its pension plan.  The Board explained that, under a combination of factors, the Union waived its right to bargain over changes to the Employer’s pension plan during the term of the parties’ contract.  Chairman Pearce dissented, finding that the factors identified by the majority, even considered in combination, were insufficient to meet the Board’s “clear and unmistakable” waiver standard.

A separate Board majority (Chairman Pearce and Member Becker) adopted the judge’s findings and found that the Employer violated Section 8(a)(5) when, after the parties’ contract had expired, it ceased matching contributions to employee 401(k) plan accounts.  Rejecting the Employer’s argument that the Union also waived its right to bargain over this change, the majority explained that, under Board law, “the waiver of a parties’ right to bargain does not outlive the contract that contains it.”  Member Hayes dissented, finding that the Union waived its right to bargain over this change because 401(k) plan documents clearly reserved the Employer’s right to make the change.  Member Hayes reasoned that just as plan benefits enjoyed by employees survive the contract’s expiration, so too must the Employer’s ability to exercise its corresponding rights under the 401(k) plan. 

Charge filed by Teamsters District Council 2, Local 543M, affiliated with International Brotherhood of Teamsters.  Administrative Law Judge James M. Kennedy issued his decision on March 26, 2010.  Chairman Pearce and Members Becker and Hayes participated. 

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Simon DeBartolo Group a/w M.S. Management Associates, Inc. (29-CA-23218; 357 NLRB No. 157) Garden City, NY, December 30, 2011.  

The Board majority (Chairman Pearce and Member Becker) applied the analysis set forth in New York New York, 356 NLRB No. 119 (2011) and found that the Respondent, an owner of shopping malls, unlawfully interfered with the Section 7 rights of employees of its maintenance contractor, Control Building Services, by preventing the Control employees from distributing prounion handbills, as part of the employees’ organizational effort, to customers outside the entrances of two of the Respondent’s malls at which the handbillers regularly worked.  The same Board majority, relying on the Administrative Law Judge’s analysis and credibility determinations, also adopted the judge’s finding that the director of security for one of the Respondent’s malls engaged in unlawful surveillance of a group of Control employees while they met with Union organizers.  Member Hayes dissented on both issues.  With regard to the handbilling, Member Hayes would have applied the test set forth in his dissenting opinion in New YorkNew York, supra, and would have remanded for evidence on the handbillers’ alternative means of communication.  With regard to the surveillance, Member Hayes would not have relied on the judge’s credibility determinations and would have found insufficient evidence of unlawful surveillance.

Charge filed by Service Employees International Union, Local 32B-32J.  Administrative Law Judge George Carson II issued his supplemental decision July 13, 2006.  Chairman Pearce and Members Becker and Hayes participated.

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Domsey Trading Corp., et al. (29-CA-14548 et al.; 357 NLRB No. 164) Brooklyn, NY, December 30, 2011.

On February 18, 2011, the Second Circuit denied the Board’s application for enforcement of its supplemental decision (351 NLRB 824 (2007)) and second supplemental decision (355 NLRB No. 89 (2010)), and remanded the case to the Board for further proceedings consistent with its decision.  NLRB v. Domsey Trading Corp., 636 F.3d 33.  Since the Supreme Court held in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), that discriminatees who lack work authorization are ineligible for backpay under the NLRA, the court found that it was an abuse of discretion for the Board in its 2007 supplemental decision to ignore Domsey’s objection to the Administrative Law Judge’s immigration-related evidentiary rulings in his supplemental decision which were based on pre-Hoffman Second Circuit and Board law that deemed immigration status to be irrelevant to backpay eligibility.  The court remanded the case to the Board to correct these errors.  The Board (Chairman Pearce and Members Becker and Hayes), having considered the court’s decision, decided to remand the case to the judge for further proceedings consistent with the court’s decision, which the Board accepted as the law of the case.  

Charges filed by International Ladies’ Garment Workers Union.  The proceeding was remanded to Administrative Law Judge Michael A. Marcionese for further appropriate action.  Chairman Pearce and Members Becker and Hayes participated.

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Fremont Medical Center & Rideout Memorial Hospital (20-CA-33521 et al.; 357 NLRB No. 158) Yuba City, CA, December 30, 2011.

The Board (Chairman Pearce and Member Becker; Member Hayes concurring in part and dissenting in part) adopted the Administrative Law Judge’s finding that the Respondent violated 8(a)(5) of the Act by unilaterally removing staff scheduling duties from charge nurse RNs.  Reversing the judge, the Board also found that the Respondent violated 8(a)(1) by extending its no-solicitation/no-distribution policy to conduct (“talk”) that was not covered by the policy, and by the Director of Women and Children Service’s statement to an RN that she (the Director) had been told to stop all union activities, which the Board found an overly broad restriction on protected activity.  Since the conduct at issue violated the Act irrespective of the Respondent’s no-solicitation/no-distribution policy, the Board found it unnecessary to consider the judge’s analysis of the issues under Register-Guard, 351 NLRB 1110 (2007), enfd. in part sub nom. Guard Publishing Co. v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).  The Board, again reversing the judge, dismissed three 8(a)(5) allegations, including a refusal to provide information regarding the discipline of an employee.  The Board found that since the Respondent reasonably construed the Union’s information request to refer to an unfair labor practice charge, the Respondent was not obligated to furnish the information.  A Board majority (Chairman Pearce and Member Becker), reversed the judge to find that the Respondent violated 8(a)(3) by disciplining two RNs because of their union activities, and violated 8(a)(1) by repromulgating and more strictly enforcing a nonemployee access policy in response to increased union activity.  Finding that factual issues remained as to these two issues, Member Hayes would have remanded them to the judge to make appropriate findings of fact and conclusions of law.

Charges filed by California Nurses Association, AFL-CIO.  Administrative Law Judge John J. McCarrick issued his decision on January 29, 2009.  Chairman Pearce and Members Becker and Hayes participated.

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CF Taffe Plumbing Co., Inc. (13-CA-45890; 357 NLRB No. 165) Chicago, IL, December 30, 2011.

Following a remand to the Administrative Law Judge to reopen the record and consider additional evidence, the Board adopted the judge’s findings that the Charging Party, who was discharged in violation of Section 8(a)(3) and (1) of the Act, did not make a post-discharge threat to a co-worker which cost the Charging Party the remedies of reinstatement and back pay.

Although Member Hayes would have rejected the Charging Party’s motion to reopen the record as untimely, he agreed with the judge’s supplemental findings that the Charging Party did not make a post-discharge threat that warranted his forfeiture of make-whole relief.

Charge filed by an Individual.  Administrative Law Judge Arthur J. Amchan issued his supplemental decision on November 10, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Camelot Terrace (33-CA-15584 et al.; 357 NLRB No. 161) Streator and Galesburg, IL, December 30, 2011.

Adopting the Administrative Law Judge’s recommended remedy, the Board ordered the Respondents to reimburse the Charging Party Union for its negotiation expenses incurred as a result of the Respondents’ bad-faith bargaining and related violations of Section 8(a)(5) and (1) of the Act.  The Board found that the Respondents’ aggravated unlawful conduct at and away from the bargaining table, including, among other things, restricting the dates and length of bargaining sessions, canceling and shortening sessions, reneging on tentative agreements without good cause, refusing to bargain over economic subjects, refusing to furnish relevant information, and making unilateral changes in terms and conditions of employment, infected the core of the bargaining process and directly caused the Union to waste considerable resources on protracted and futile negotiations.  The Board further adopted the judge’s recommended order to reimburse the General Counsel and the Union for expenses incurred in the investigation, preparation, and litigation of charges filed against the Respondents based on their abrogation of settlement agreements pertaining to earlier charges, defiance of their obligation to bargain, refusal to resolve the later charges short of trial, and knowing presentation of transparently non-meritorious defenses and perjurious testimony.  Relying on its inherent authority to preserve the integrity of its processes the Board found that the Respondents demonstrated bad faith not only in their underlying unlawful conduct, but also in their wanton misuse of legal processes in support of their unlawful objectives.  Member Hayes dissented with respect to the reimbursement of litigation expenses.  In his view, the Board lacks the inherent authority of article III courts and may only exercise the remedial powers vested in it by statute.

Charges filed by SEIU Healthcare, Local 4.  Administrative Law Judge John H. West issued his decision on December 31, 2009.  Chairman Pearce and Members Becker and Hayes participated.

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Northrop Grumman Shipbuilding, Inc. (5-RC-16292; 357 NLRB No. 163) Newport News, VA, December 30, 2011. 

A Board majority (Chairman Pearce and Member Becker) affirmed the Regional Director’s finding that a departmental unit of radiological control technicians (RCTs), calibration technicians, laboratory technicians, and RCT trainees was appropriate for bargaining.  Applying the principles set forth in its recent decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), the Board concluded that the employees were “readily identifiable as a group.”  The Board further found that the Employer failed to establish that the other technical employees it sought to include in the unit shared an overwhelming community of interest with the radiological employees.  Additionally, the Board found, in agreement with the Regional Director, that even under the traditional community of interest test, a departmental unit of radiological technical employees constituted “a functionally distinct grouping with a sufficiently distinct community of interest as to warrant a separate unit appropriate for the purposes of collective bargaining.”  Member Hayes dissented, finding that the majority’s result illustrated “the degree to which Specialty Healthcare has elevated the extent of organizing as the definitive factor in determining the appropriateness of units.”  Member Hayes concluded that the Board’s longstanding policy has been that an appropriate unit should include all those who share a community of interest and carry out functionally related duties. Member Hayes found that under the relevant precedent, the departmental unit was not appropriate.

Petitioner – International Association of Machinists and Aerospace Workers, AFL-CIO.  Regional Director issued the decision on May 29, 2009.  Chairman Pearce and Members Becker and Hayes participated.

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1621 Route 222 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation and Nursing Center (22-CA-64426, 357 NLRB No. 153) Bound Brook, NJ, December 30, 2011.

This is a refusal-to-bargain case in which the Respondent contested the Union’s certification as bargaining representative.  The Board ordered the Respondent to cease and desist from failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the bargaining unit; refusing to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees; and in any like or relating manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

Charge filed by 1199 SEIU United Healthcare Workers East, New Jersey Region.  Chairman Pearce and Members Becker and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Cape Cod Symphony Orchestra, Inc. (1-RC-22338) Yarmouth, MA, December 28, 2011.  Order denying the Employer’s request for review of the Regional Director’s decision and direction of election.  Member Hayes dissented would have granted the review.  Petitioner – Boston Musicians’ Association a/w American Federation of Musicians, Local 9-535, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

Plano Symphony Orchestra (16-RC-10844) Plano, TX, December 28, 2011.  Decision on review and order affirming the Regional Director’s findings that the musicians are statutory employees and remanding the case to the Regional Director for further appropriate action.  Member Hayes dissented would have reversed the Regional Director’s findings.  Petitioner – Dallas/Fort Worth Professional Musicians Association, Local 72-147.  Chairman Pearce and Members Becker and Hayes participated.

GGNSC Springfield LLC d/b/a Golden Living Center-Springfield (26-RC-67840) Springfield, TX, December 28, 2011.  Order denying Employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – International Association of Machinists and Aerospace Workers, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

Nestle Dryer’s Ice Cream (31-RC-66625) Bakersfield, CA, December 28, 2011.  Order denying the Employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – International Union of Operating Engineers, Local 501, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

Webster University (14-RC-12831) St. Louis, MO, December 28, 2011.  Order denying the Employer’s request for review of the Regional Director’s decision and direction of election.  Member Hayes dissented would have granted the review.  Petitioner – Musicians Association of St. Louis, Local 2-197, American Federation of Musicians, AFL-CIO.  Chairman Pearce and Member Becker and Hayes participated.

The Boeing Company (31-UC-00311) Palmdale, CA, December 29, 2011.  Order denying the Employer-Petitioner’s request for review of the Acting Regional Director’s supplemental decision and order dismissing petition.  Petitioner – Society of Professional Engineering Employees in Aerospace, IFPTE, Local 2001, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

Clougherty Packing LLC, d/b/a FJ Food Service (21-RC-21310) Los Angeles, CA, December 30, 2011.   Decision and certification of representative case.  Petitioner – United Food and Commercial Workers Union, Local 770, United Food and Commercial Workers International Union.  Chairman Pearce and Members Becker and Hayes participated.

U.S. Food Service, Inc. (12-RC-9413) Tampa, FL, December 30, 2011.  Order affirming the Regional Director’s decision.  Petitioner – International Brotherhood of Teamsters, Local 79.  Chairman Pearce and Members Becker and Hayes participated.

Fresh Direct, LLC (29-RC-12087) Long Island City, NY, December 30, 2011.  Decision and order remanding proceeding to the Regional Director for further appropriate action.  Petitioner – International Brotherhood of Teamsters, Local 805. 

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C Cases

Hyatt Corporation (28-CA-61114) Chicago, IL, December 27, 2011.  Order denying Employer’s petition to revoke subpoena.  Charge filed by UNITE HERE International Union.  Chairman Pearce and Members Becker and Hayes participated.

Republic Services, Inc. (25-CA-31683, et al.) Indianapolis, IN, December 28, 2011.  Order remanding cases to Administrative Law Judge.  Charges filed by IUOE, Local 150, AFL-CIO.

Brave Electrical Contracting, LLC d/b/a Brave General Contracting, LLC (5-CA-36058, et al.) Virginia Beach, VA, December 29, 2011.  Order adopting the findings and conclusions of the Administrative Law Judge and ordering Respondent to take recommended action.  Charges filed by International Brotherhood of Electrical Workers, Locals 80 and 1340.

Titus Electrical Contracting, LLC (16-CA-21613, et al.) Austin, TX, December 29, 2011.  Order adopting the findings and conclusions of the Administrative Law Judge and ordering the Respondent to take recommended action.  Charges filed by International Brotherhood of Electrical Workers, Local 520.

Allied Mechanical Services, Inc. (7-CA-41687, et al.) Grand Rapids and Kalamazoo, MI, December 29, 2011.  Order denying Respondent’s motion for reconsideration.  Charges filed by Plumbers and Pipe Fitters, Local 357, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

New Vista Nursing and Rehabilitation, LLC (22-CA-29988) Newark, NJ, December 30, 2011.  Order denying Respondent’s motion for reconsideration.   Charge filed by 1199 SEIU United Healthcare Workers East, NJ Region.  Chairman Pearce, who was recused and did not participate in the underlying decision, is a member of the present panel but did not participate in deciding the merits of the case.  Members Becker and Hayes participated.  

Douglas Autotech Corporation (7-CA-51428) Bronson, MI, December 30, 2011.  Order denying motion for reconsideration, rehearing, and reopening the record.  Charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 822, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

Jones & Carter, Inc./Cotton Surveying Co. (16-CA-27969) Houston, TX, December 30, 2011.  Order denying motion for reconsideration of the Board’s order denying petition to revoke subpoena.  Charge filed by an Individual.  Chairman Pearce and Members Becker and Hayes participated.

Mayfair Lumber Co. (13-CA-46691) Chicago, IL, December 30, 2011.  Decision and order pursuant to a settlement stipulation.  Charge filed by Laborers’ Local 681, affiliated with Laborers’ International Union of North America.  Chairman Pearce and Members Becker and Hayes participated.

Seaport Printing & Ad Specialties, Inc., a/b/a Port Printing Ad and Specialties (15-CA-17976) Lake Charles, LA, December 30, 2011.  Order granting request for review of the Acting General Counsel’s decision sustaining the Regional Director’s compliance determination and remanding case to the Regional Director for further appropriate action. Charge filed by Lake Charles Printing and Graphics Union, Local 260, affiliated with Graphics Communications International Union, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

Bungle Milling, Inc. (33-CA-15997) Danville, IL, December 30, 2011.  Order denying the Acting General Counsel’s request for special permission to appeal the request to stay.  Charge filed by an Individual.  Chairman Pearce and Members Becker and Hayes participated.

Esperanza Unida, Inc. (30-CA-18996) Milwaukee, WI, December 30, 2011.  Decision and order pursuant to a settlement stipulation.  Charge filed by Voces De La Frontera.  Chairman Pearce and Members Becker and Hayes participated.

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Appellate Court Decisions

Mi Pueblo Foods, Board Case No. 32-CA-25518 (reported at 356 NLRB No. 107) (D.C. Cir. decided December 27, 2011)

In an unpublished judgment, the court agreed with the Board that the employer unlawfully refused to bargain with the duly-certified union in this technical 8(a)(5) election case.  In so holding, the Court found that substantial evidence supported the Board's findings that a unit of warehouse drivers at this food warehouse was appropriate, given the similarities in their work, pay, supervision, and licensing requirements.  Rejecting the employer's argument, the Court observed that "[w]hether a unit consisting of all warehouse employees would also be appropriate is immaterial...."  Next, the Court agreed that two sub-classifications of drivers were appropriately included in the unit, even though they sometimes perform other warehouse duties in addition to driving, noting that "Board precedent supports inclusion of dual-function employees if their wages, hours, and conditions of employment are similar to those in the bargaining unit."  Finally, the Court noted that, because substantial evidence supported the Board's unit determinations, there was no substance to the employer's claim that the Board unlawfully gave controlling weight to the union's preferences and previous extent of organizing. 

The Court's unpublished judgment is here.

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Decisions of Administrative Law Judges

A.W. Farrell & Son, Inc. (28-CA-23502, et al.; JD(SF)-52-11) Las Vegas, NV.  Charges filed by United Union of Roofers, Waterproofers, and Allied Workers, Local 162.  Administrative Law Judge Lana H. Parke issued her decision on December 28, 2011.

Lucky Cab Company (28-CA- 23508, et al.; JD(SF)-51-11) Las Vegas, NV.  Charges filed by Industrial, Technical and Professional Employees Union, Local 4873 affiliated with Office and Professional Employees International Union, AFL-CIO.  Administrative Law Judge Lana H. Parke issued her decision on December 28, 2011.

Flex-N-Gate Texas, LLC (16-CA-27742, et al.; JD(ATL)-36-11) Arlington, TX.  Charges filed by United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO.  Administrative Law Judge Margaret G. Brakebusch issued her decision on December 28, 2011.

Mid-West Telephone Service, Inc. (8-CA-38901, et al.; JD-77-11) Girard, OH.  Charges filed by Individuals.  Administrative Law Judge Mark Carissimi issued his decision on December 28, 2011.

Kag-West LLC (21-CA-39488, et al.; JD(SF) 50-11) Los Angeles, CA.  Charges filed by Miscellaneous Warehousemen Drivers and Helpers, Local 986, International Brotherhood of Teamsters.  Administrative Law Judge William G. Kocol issued his decision on December 30, 2011.

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