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Summary of NLRB Decisions for Week of December 3-7, 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

Hostess Brands Corporation (01-CA-080461; 359 NLRB No. 26) Biddeford, ME, December 3, 2012.

Having found that the respondent violated the Act by failing to furnish the union with certain requested information, by unreasonably delaying in providing other requested information, and failing to bargain collectively and in good faith, the Board ordered the respondent to cease and desist and to provide the union with requested information.

Charge filed by Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, Local 334.  Chairman Pearce and Members Griffin and Block participated.

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First Student, Inc. (19-UD-077098; 359 NLRB No. 27) Fairbanks, AK, December 5, 2012. 

The Board denied review of the Regional Director’s order dismissing petition.  The majority, Chairman Pearce and Member Griffin, found that the Regional Director properly dismissed the petition because the employees were part of a merged, national bargaining unit while the petition was limited to Fairbanks, Alaska employees.

Dissenting, Member Hayes stated that reconsideration of the Board’s merger policy is needed to the extent that it precludes a deauthorization petition in the originally certified Fairbanks, Alaska unit.

Petitioner – an individual.  The Regional Director issued his order on April 13, 2012.  Chairman Pearce and Members Hayes and Griffin participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Ramcor Services Group, Inc. (28-RC-072171) Artesia, NM, December 3, 2012.  Having no exceptions filed, the Board adopted the hearing officer’s findings and recommendations and found that a certification of representative should be issued.  Petitioner – International Union of Operating Engineers, Local 953, AFL-CIO.

Eastern Bus Company (01-RC-082285) Somerville, MA, December 3, 2012.  In light of exceptions and briefs, the Board adopted the hearing officer’s findings and recommendations and found that a certification of representative should be issued.  Petitioner – United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.  Members Hayes, Griffin, and Block participated.

Hope Institute for Children and Families (The) (25-RC-085832) Springfield, IL, December 4, 2012.  Order affirming the dismissal of the petitioner’s request for review of the Regional Director’s decision and order dismissing petition.  Petitioner – American Federation of State, County and Municipal Employees, Council 31, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

G4S Government Solutions, Inc. (05-UD-086913) Washington, DC, December 5, 2012.  Order rescinding a decision and certification of results of election that was inadvertently issued on December 3, 2012.  Petitioner – International Union Federal Contract Guards of America (FCGOA).

Kaiser Foundation Health Plan, Inc.; Kaiser Foundation Hospitals, Southern California Permanente Medical Group; Permanente Medical Group (The), Inc. (32‑RC‑005775) Pasadena, CA, December 5, 2012.  Order granting the intervenor’s request for special permission to appeal the Regional Director’s order denying the intervenor’s motion for reconsideration of the Acting Regional Director’s administrative report on objections and/or to reopen the record and denying the appeal on the merits.  Petitioner – National Union of Healthcare Workers.  Chairman Pearce and Members Griffin and Block participated.

Macy’s Inc. (01-RC-091163) Saugus, MA, December 4, 2012.  Order granting the employer’s request for review of the Acting Regional Director’s decision and direction of election.  Petitioner – Local 1445, United Food and Commercial Workers Union.  Chairman Pearce and Members Griffin and Block participated.

ROHR, Inc. Operating as Goodrich Aerostructures (21‑UC‑074150) Riverside, CA, December 6, 2012.  Order denying the petitioner’s request for review of the Regional Director’s decision and order.  Petitioner – International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 725, Local Lodge 964.  Chairman Pearce and Members Griffin and Block participated.

RC Power, Inc. (32-RC-089299) Los Gatos, CA, December 6, 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 – International Brotherhood of Electrical Workers, Local 332.

C Cases

341 Jordan Lane Operating Company II, LLC d/b/a Wethersfield Health Care Center (34‑CA‑070823, et al.) Wethersfield, CT, November 3, 2012.  Order denying Care One LLC’s request for special permission to appeal the administrative law judge’s ruling denying its petition to revoke the Acting General Counsel’s subpoenas duces tecum.  Charges filed by New England Health Care Employees Union, District 1199, SEIU, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

Countrywide Financial Corporation, Countrywide Home Loans, Inc., and Bank of America Corporation              (31-CA-072916, et al.) Lancaster, CA, December 3, 2012.  Order denying the respondent’s motion for summary judgment and the charging parties’ cross-motion for summary judgment.  Charges filed by Thierman Law Firm, P.C.  Chairman Pearce and Members Griffin and Block participated.

Lee’s Industries, Inc. and Lee’s Home Health Services, Inc. and Lee’s Companies, Inc. (single employer)        (04-CA-036904) Philadelphia, PA, December 3, 2012.  Order transferring proceedings to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.  Charge filed by an individual.

Allied Waste of Santa Clara County (32-CA-085550) Milpitas, CA, December 3, 2012.  Order denying the petitions to revoke the Acting General Counsel’s investigative subpoena ad testificandum and subpoena duces tecum by Allied Waste of Santa Clara County.  Charge filed by Teamsters, Local 350.  Chairman Pearce and Members Griffin and Block participated.

Hornblower Cruises and Events (20-CA-087592) San Francisco, CA, December 3, 2012.  Order denying the employer’s petition to revoke subpoena duces tecum.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

Cohen Ophthalmology & Consulting, Inc. (28-CA-086143) Tucson, AZ, December 3, 2012.  Order denying the respondent’s motion for summary judgment or dismissal for lack of jurisdiction.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

Saint Luke’s Memorial Hospital, Inc. d/b/a Hospital Episcopal San Lucas Ponce (24‑CA‑071324, et al.) Ponce, PR, December 3, 2012.  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 Unidad Laboral De Enfermeros/OS Y Empleados De La Salud.  Chairman Pearce and Members Griffin and Block participated.

MOYNO, Inc. (09-CA-086468) Springfield, OH, December 5, 2012.  Order denying the employer’s partial petition to revoke subpoena duces tecum.  Charge filed by United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 902.  Chairman Pearce and Members Griffin and Block participated.

ChimeOn d/b/a GoodChime, and Vitalspring Technologies, Inc. (31-CA-078292) Woodland Hills, CA, December 6, 2012.  Order denying the respondents’ motion to dismiss.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

Marriott International, Inc. d/b/a J.W. Marriott Los Angeles at L.A. Live (21-CA-039556) Los Angeles, CA, December 7, 2012.  Order denying the respondent’s motion for reconsideration.  Charge filed by UNITE HERE! Local 11.  Chairman Pearce and Members Hayes and Block participated.

Contemporary Cars, Inc. d/b/a Mercedes-Benz of Orlando and Autonation, Inc. single and joint employers     (12-CA-026126, et al.) Maitland, FL, December 7, 2012.  Order denying the respondents motion for reconsideration of the Board’s decision and order.  Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO.  Members Hayes, Griffin, and Block participated.

Boeing Company (The) (11-CA-077979) North Charleston, SC, December  7, 2012.  Having no statement exceptions filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and ordered the respondent to take the recommended action.  Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO.

Conditioned Air Systems, Inc. (05-CA-079299) Baltimore, MD, December 7, 2012.  Having no statement of exceptions filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and ordered the respondent to take the recommended action.  Charge filed by Plumbers and Gas Fitters, Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO.

CG’s Lawn & Janitorial Service, LLC (15-CA-019117, et al.) Fort Rucker, AL, December 7, 2012.  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 Industrial Technical & Professional Employees Union, OPEIU, Local 4873.

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Appellate Court Decisions

KLB Industries, Inc., Board Case No. 8-CA-37672 (reported at 357 NLRB No. 8) (D.C. Cir. decided December 4, 2012)

In a published decision the Court enforced the Board’s order in full, agreeing that the employer’s reliance on “competitive disadvantage” to justify bargaining demands for reduced wages triggered its duty to provide information verifying its claims. 

During 2007 negotiations for a new collective bargaining agreement, the parties came to the table with diametrically opposite views on wages.  The employer voiced concerns about competition from international markets and retaining customers, and therefore opened negotiations with a request for a 20 percent reduction in wages.  The union, on the other hand, asked for wage increases during the term of the contract.  Over the two weeks of bargaining, the parties moved a bit closer, offering smaller reductions and smaller raises, but never met, and, the employer ultimately made its last and final offer containing an eight percent reduction in wages the first year, and two percent in the two subsequent years.  The next day, the union sent a request for a wealth of information about the employer’s customers, prices, market studies, and price quotes from suppliers, among other things.  The union’s letter explained that, “’[d]uring the course of the[] negotiations, [the employer] has continually asserted that they must improve the competitive position of the ... facility,’” and the information was necessary “generally to verify [the employer’s] competitiveness claim and ... specifically to ‘compare the prices of competitors.’”  Approximately two weeks later, the employer refused to provide the bulk of the information, and, shortly thereafter, locked out unit employees and cancelled their health care plan, rendering them ineligible for COBRA benefits. 

The Board found that the refusal to provide information violated the employer’s duty to bargain in good faith and tainted the subsequent lockout, and the Court agreed.  At the outset, the Court explained that the Board has developed two lines of cases following the Supreme Court’s seminal decision in NLRB v. Truitt Mfg., 351 U.S. 149 (1956), which initially set forth an obligation to provide information as part of the duty to bargain in good faith.  First is the Nielsen Lithographing Co. line, 305 NLRB 697 (1991), requiring an employer to “open its books” to thorough inspection only upon a claim of inability to pay for a union’s demands, not just of a competitive disadvantage.  Second, however, is the Board’s line of general discovery cases, such as Caldwell Mfg. Co., 346 NLRB 1159 (2006), which hold that an employer must provide relevant information necessary to the union’s duties as bargaining representative, employing a broad, discovery-like standard.  As the Court stated, the Nielsen cases require an employer “to open its books for a full financial audit—a disclosure obligation that extends to a plethora of financial information,” while the Caldwell line simply “allows a union to request specific information to verify a company’s stated position, including competitiveness claims.”  

Here, the Court agreed that the Board reasonably characterized the union’s request here under the second line of cases, as a proper discovery request for information relevant to the employer’s position that significant wage reductions were needed to ensure competitiveness.  Rejecting the employer’s argument that competitive disadvantage cases “have a talismanic quality that requires application of Nielsen’s framework,” the Court concluded that the employer’s “position ignores the Board’s careful approach to its own precedent.”  In essence, the Court opined, “where, as here, an employer raises a competitiveness claim as its central justification for wage concessions, a union is entitled to information verifying that claim.”  

Further rejecting the employer’s arguments, the Court held that the Board reasonably found that the employer’s claims of disadvantage were sufficiently specific to trigger a disclosure requirement; that the partial information it did provide did not satisfy its duty; and that the union did not make the request in bad faith to stall impasse.  Finally, the Court found that the Board adequately linked the failure to provide information to the progress of bargaining, and therefore properly found the lockout (and cancellation of health benefits) unlawful. 

Judge Henderson dissented.  She would have found this to be a Nielsen case, for which disclosure was unnecessary.  The Court’s opinion is available here

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Administrative Law Judge Decisions

United States Postal Service (29-CA-078913; JD(NY)-38-12) Melville, NY.  Charge filed by National Postal Mail Handlers Union, Local 300, LUNA.  Administrative Law Judge Raymond P. Green issued his decision on December 3, 2012.

Kroger Limited Partnership I Mid-Atlantic (05-CA-079268; JD-64-12) Richmond, VA.  Charge filed by United Food and Commercial Workers, Local 400 (UFCW).  Administrative Law Judge Paul Bogas issued his decision on December 5, 2012.

Allied Barton Security Services, LLC (03-CA-078926, et al.; JD(NY)‑40‑12) Buffalo, NY.  Charges filed by Plant Protection Association National, Local 104.  Administrative Law Judge Raymond P. Green issued his decision on December 7, 2012.

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