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Summary of NLRB Decisions for Week of December 5-9, 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

W.D. Manor Mechanical Contractors, Inc. (28-CA-22384, et al.; 357 NLRB No. 128) Phoenix, AZ, December 7, 2011.

The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) of the Act by: promulgating overly broad no-solicitation rules prohibiting employees from speaking with union agents or with other employees about the Union during company time; promulgating and enforcing a discriminatory rule prohibiting solicitation during working time; creating the impression that employees’ union activities were under surveillance; threatening employees that they must notify the Respondent of the Union’s presence on the Respondent’s jobsites; threatening employees with discharge for violating its overly broad no-solicitation rules; threatening employees with discharge or other unspecified reprisals for supporting the Union; threatening to close the Respondent’s facilities if employees supported the Union; threatening employees who supported the Union by inviting them to quit; telling employees that it is futile to support the Union; directing employees to call the police if union supporters attempted to apply for jobs with the Respondent; and interrogating employees about their union and other protected concerted activities and asking employees to disclose the union activities of other employees.  The Board also adopted the judge’s findings that the Respondent violated Section 8(a)(3) and (1) by: disciplining and/or discharging employees for engaging in union and other protected concerted activity; imposing more onerous working conditions on employees by restricting their break times and relocating break areas; refusing to hire applicants because of their union and other protected concerted activity; and issuing a written warning to an employee for violating its discriminatory no-solicitation rule.  Agreeing with the judge that these unfair labor practices also constituted objectionable conduct, the Board further adopted his recommendation to set aside the results of the election and order a new election.

Charges filed by Sheet Metal Workers’ International Association, Local No. 359, AFL-CIO, CLC.  Administrative Law Judge John J. McCarrick issued his decision on May 5, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Engineering Contractors, Inc. and ECI of Washington, LLC (05-CA-36213,357 NLRB No. 127) Upper Marlboro, MD and Washington, DC, December 8, 2011.

The Board adopted the Administrative Law Judge’s findings that the Respondents were alter-ego companies and that they violated Section 8(a)(3) of the Act by discharging their entire unionized workforce to discourage membership in a labor organization.  The Board also adopted the judge’s findings that the Respondents violated Section 8(a)(5) by withdrawing recognition from Plumbers Local 5, Steamfitters Local 602, Sheet Metal Workers Local 100, and Asbestos Workers Local 24, by repudiating collective-bargaining agreements with those unions, and by refusing to furnish information requested by Sheet Metal Workers Local 100 about the Respondents’ relationship.

Charges filed by Plumbers, Local No. 5, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, etc.  Administrative Law Judge Bruce D. Rosenstein issued his decision on September 1, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Sheet Metal Workers’ International Association, Local 27, AFL-CIO (E.P. Donnelly, Inc.) (4‑CD‑1188; 357 NLRB No. 131) Jamison, PA, December 8, 2011.

The Board affirmed the Administrative Law Judge’s finding that Sheet Metal Workers’ Local 27 violated Section 8(b)(4)(ii)((D) of the Act by maintaining its breach-of-contract lawsuit against Donnelly after the Board, in 351 NLRB 1417 (2007), awarded the disputed roofing work to employees represented by Carpenters Local 23.  But the Board reversed the judge’s finding that continuing its lawsuit against the general contractor was unlawful because it was not alleged to be unlawful and because the general contractor did not directly assign the work so any contrary award would not conflict with the 10(k) award.

Local 27 claimed the work under a Project Labor Agreement (PLA) authorized by New Jersey state law for a “public works” project, but Donnelly assigned the work to its Carpenters-represented employees.  An arbitrator concluded Donnelly breached the PLA and awarded the work to Local 27.  In the 10(k) proceeding, Local 27 contended that the Board could not award the work because the PLA was not subject to preemption by the Act under Supreme Court precedent.  The Board disagreed that its award would impermissibly preempt state law, noting:[Donnelly] would continue to be bound under the terms of the PLA, and the parties to the PLA would retain any rights they may have under state law to bring a suit for damages against [Donnelly] for any breach of the PLA.”  Local 27 interpreted this sentence as permission to continue seeking damages for breach of the PLA and amended its lawsuit to no longer seek the work itself.

In affirming the violation, the Board found that Local 27 misinterpreted the sentence in the 10(k) award by taking it out of context.  The Board noted that had it intended to overrule decades of precedent and permit pursuit of a conflicting claim it would have done so explicitly. Instead the Board rejected as meritless the contention that it could not award the work and reaffirmed that its 10(k) determinations take precedence over conflicting claims and arbitration awards.  Considered in context, the one sentence was merely to point out that resolution of this work dispute would not amount to a general preemption of state law or otherwise nullify the parties’ obligations under the PLA. 

Charge filed by E.P. Donnelly. Administrative Law Judge Joel P. Biblowitz issued his decision on August 18, 2008.  Chairman Pearce and Members Becker and Hayes participated.

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Gestamp South Carolina, LLC (11-CA-22595;357 NLRB No. 130) Union, SC, December 8, 2011.

The Board short-form adopted the Administrative Law Judge’s finding that the Respondent violated 8(a)(1) of the Act by threatening a union organizer with discharge and 8(a)(3) and (1) of the Act by discharging a union organizer and suspending and discharging another union organizer in retaliation for their union activity.

Charges filed by Individuals.  Administrative Law Judge Ira Sandron issued his decision on March 2, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Spurlino Materials, LLC or Spurlino Materials of Indianapolis, LLC; or both as a single employer (25‑CA‑31565; 357 NLRB No. 126) Indianapolis, IN, December 6, 2011.

The Board adopted the Administrative Law Judge’s finding that Spurlino Materials, LLC and Spurlino Materials of Indianapolis, LLC constitute a single employer and that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to immediately reinstate employees engaged in an unfair labor practice strike after the employees made an unconditional offer to return to work.

Charge filed by Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local 716. Administrative Law Judge Jeffery D. Wedekind issued his decision on March 15, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Caribbean International News Corporation (24-CA-11237; 357 NLRB No. 133) San Juan, PR, December 8, 2011.

The Board adopted the Administrative Law Judge’s findings that one or both of the alter ego employers had violated Sections 8(a)(5) and 8(a)(1) of the Act by (1) failing to abide by the terms of a December 26, 2008 agreement relating to the pension plan, cancer plan, life insurance, funeral insurance, long-term disability plan, and gasoline stipend, and by failing to bargain with the Union regarding these terms and conditions of employment, (2) unilaterally changing pay dates, severance payments, vacation policy, medical benefits and bumping rights, (3) discharging about 107 bargaining unit employees in alter ego El Vocero’s circulation department and by contracting out or assigning their work to alter ego News Distributor, (4) permitting a supervisor to perform bargaining unit work, (5) failing to notify or bargain in good faith with the Union to an impasse regarding the discharge of circulation department employees, the contracting out or assignment of bargaining unit work and permitting a supervisor to perform bargaining unit work, (6) dealing directly with bargaining unit employees, and (7) interfering with, restraining or coercing bargaining unit employees in the exercise of their Section 7 rights.

Charge was filed by De Periodistas, Artes Graficas Y Ramas Anexas, Local 33225.  Administrative Law Judge Michael A. Rosas issued his decision on September 24, 2010.   Chairman Pearce and Members Becker and Hayes participated.

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Wellington Industries, Inc. (07-CA-53182; 357 NLRB No.135) Belleville, MI, December 9, 2011.

The Board short-form adopted the Administrative Law Judge’s finding that the Respondent violated 8(a)(5) and (1) of the Act by conditioning bargaining with Independent Local One, the exclusive bargaining representative of an appropriate unit of the Respondent’s employees, upon the absence of UAW Local 174’s president.  The Board declined to pass on the Respondent’s previously raised argument that Local One’s affiliation with UAW Local 174 was improper.

Charge filed by Local 174 UAW, AFL-CIO and Independent, Local 1.  Administrative Law Judge Keltner W. Locke issued his decision on May 2, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Rogan Brothers Sanitation, Inc. (2-CA-40028; 357 NLRB No. 137) Yonkers, NY, December 9, 2011.

The Acting General Counsel sought summary judgment in this case pursuant to the terms of an informal settlement agreement.  The Employer was ordered to cease and desist from instructing employees not to join the Union; threatening employees with physical harm and other reprisals if they joined the Union; discharging and refusing to rehire employees because they assisted the Union or any other labor organization; and in any like or relating manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act. Dissenting, Member Hayes stated that he would not grant summary judgment because he would find that there is a genuine issue of material fact warranting a hearing concerning whether the Employer’s general manager was authorized to enter into the settlement agreement on behalf of the Employer.  Further, and contrary to the majority, he would not find that the Employer ratified the settlement agreement.

Charge filed by International Brotherhood of Teamsters, Local 813.  Chairman Pearce and Members Becker and Hayes participated.

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Summit Healthcare Association d/b/a Summit Regional Medical Center (28‑CA‑22308; 357 NLRB No. 134) Show Low, AZ, December 9, 2011.

The Board (PBH) adopted the Administrative Law Judge’s dismissal of the General Counsel’s complaint alleging that the Respondent violated Sections 8(a)(3) and (1) of the Act by discharging a nurse for mockingly instructing a fellow nurse, “Oh, just give him anything he wants to eat.  Just give him whatever” or “Just give him a regular diet,” when asked what to do about a patient’s missing diet order. 

A Board majority (PB) found that, contrary to the judge, the nurse’s droll humor about the lack of a diet order in a patient file was for the “mutual aid or protection” of employees because diet orders are necessary tools required by nurses to perform their duties.  As such, the Board majority rejected the judge’s reliance on the case Waters of Orchard Park, 341 NLRB 642 (2004) which involved nurses' acting expressly and solely for the welfare of their patients.  The Board majority nonetheless found that the nurse’s comments were not protected by the Act because there was insufficient evidence that the actions were concerted in nature.  The nurse acted alone in making the comments, did not seek to compel other employees to action, and there was insufficient evidence that the nurse’s comments were a continuation of concerted activity. 

In a concurring opinion, Member Hayes agreed that Bunton’s comments were not concerted but would not pass on whether Bunton’s activity reflected any concern related to employee interests.

Charge filed by an Individual.  Administrative Law Judge James M. Kennedy issued his decision on February 4, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Odwalla, Inc.  (32-RC-5821; 357 NLRB No. 132) San Leandro, CA, December 9, 2011.

The Board reversed the Hearing Officer and found, in agreement with the Employer, that the Employer's merchandisers must be included in the bargaining unit.  The stipulated unit, as construed by the Hearing Officer, included delivery drivers, relief drivers ("swing reps"), warehouse associates, and cooler technicians but excluded the merchandisers.  The majority, consisting of Chairman Pearce and Member Becker, applied Specialty Healthcare and found that none of the Board's traditional community-of-interest factors supports excluding the merchandisers from the unit:  the merchandisers' work is similar to that of the drivers and swing reps; they share supervision with the delivery drivers; and their compensation is generally like that of the swing reps, warehouse associates, and cooler technicians.  In these circumstances, a unit that excludes the merchandisers would be a fractured unit; thus, the majority found that the merchandisers share an "overwhelming community of interest" with the included employees.  Member Hayes concurred.  Rather than applying Specialty Healthcare, from which he dissented, Member Hayes concluded that pre-Specialty precedents establish that the merchandisers' exclusion would create a fractured unit.  The Board thus unanimously modified the unit description to include the merchandisers and directed the Regional Director to open and count the challenged ballots.

Petitioner – Teamsters, Local 70, International Brotherhood of Teamsters.  Hearing Officer issued the report on July 20, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Paragon Systems, Inc. (10-RC-15827) Atlanta, GA, December 5, 2011.  Decision and certification of representative.  Petitioner – United Security and Police Officers of America (USPOA).  Chairman Pearce and Members Becker and Hayes participated.

East-West University, Inc. (13-RC-022017) Chicago, IL, December 7, 2011.  Order denying Employer’s request for review of the Acting Regional Director’s supplemental decision.  Petitioner – United Adjunct Faculty Association at East-West University, IEA-NEA.  Chairman Pearce and Members Becker and Hayes participated.

Grace Industries, LLC (29-RC-12031, et al.) Plainview, NY, December 9, 2011.  Order granting Petitioner/Intervenor’s request for review and remanding case to the Regional Director for further appropriate action.  Member Hayes concurring.  Petitioner/Intervenor – Highway Road and Street Construction Laborers, Local 1010, Laborers International Union of North America, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

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C Cases

Eugene Iovine, Inc. (29-CA-21840, et al.) Brooklyn, NY, December 5, 2011.  Order denying petition to revoke subpoena duces tecum B-608618.  Charges filed by International Brotherhood of Electrical Workers, Local 3, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

United StatesPostal Service (25-CA-31726, et al.) South Bend, IN, December 6, 2011.  Order adopting findings and conclusions of the Administrative Law Judge and ordering the Respondent to take action set forth in the recommended order.  Charges filed by American Postal Workers Union, Local 210 a/w American Postal Workers Union. 

M&R Insulation Systems, LLC (4-CA-37864) Newtown, PA, December 6, 2011.  Order adopting the Administrative Law Judges findings and conclusions and ordering the Respondent to take action set forth in the recommended order.  Charge filed by International Association of Heat & Frost Insulators & Allied Workers, Local 23, Harrisburg, PA, AFL-CIO.

Triple A Fire Protection, Inc. (15-CA-11498) Mobile, AL, December 7, 2011.  Order denying motion for reconsideration.  Charge filed by United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Road Sprinkler Fitters, Local 669, AFL, CIO.  Chairman Pearce and Members Becker and Hayes participated.

Apollo Detective, Inc. (13-CA-61510) Calumet Park, IL, December 8, 2011.  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 Service Employees International Union, Local 1.

Specialty Healthcare and Rehabilitation Center of Mobile (15-CA-68248) Mobile, AL, December 8, 2011.  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 United Steel, Paper and Forestry Rubber, Manufacturing, Energy Allied-Industrial and Service Workers International, AFL-CIO/CLC.

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Appellate Court Decisions

Arc Bridges, Board Case No. 13-CA-44627 (reported at 355 NLRB No. 199) (D.C. Cir. decided December 9, 2011)

In a published opinion the Court denied enforcement to the Board's order finding that the employer acted in a manner inherently destructive of employee rights by withholding an across-the-board wage increase from unionized employees while granting it nonunion workers. 

The employer granted across-the-board wage increases to all employees in 1999, 2000, 2001, 2005, and 2006; it did not grant such increases in 2002, 2003, or 2004.  After employees at the facility voted to unionize in 2007, the parties engaged in contentious contract negotiations, including over wage increases.  In July 2007, consistent with prior years, the employer granted nonunion employees an across-the-board wage increase; it did not grant the increase to unionized employees for a variety of reasons, including the fact that it wanted to leverage the possible raise in bargaining.  On these facts, the Board concluded that the employer maintained a past practice of evaluating whether wage increases were feasible each year, and, if they were, granting them across-the-board.  Applying Great Dane Trailers, 388 U.S. 26 (1967), and United Aircraft Corp., 199 NLRB 658 (1972), the Board held that the employer's failure to continue a past benefit--here, annually evaluating and granting across-the-board raises--was inherently destructive of employee rights, even if an employer may typically treat union and nonunion employees differently regarding new benefits and raises.

Not reaching the Board's legal theory, the Court found that substantial evidence did not support the Board's finding that the employer had a past practice of evaluating and then granting across-the-board raises each year.  As the Court stated, "the Board's decision contains a rather large evidentiary hole.  [The employer] granted no wage increases in July 2002, July 2003, or July 2004 - three of the five years immediately preceding the 2007 wage decision here."  Although the Board had "presumed" that no increases were given in those years due to budgetary concerns, the Court could not find evidence supporting that fact finding and thus found that the Board "could not possibly have concluded that annual across-the-board wage increases were an established condition of employment."  It therefore concluded that the employer's actions were not "inherently destructive," granted the employer's petition for review, and remanded the case for the Board to consider a different theory of liability, as to which it had reserved judgment in its decision.

The Court's opinion is available here.

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Fortuna Enterprises, LP, Board Case No. 31-CA-27837 (reported at 355 NLRB No. 122) (D.C. Cir. decided December 9, 2011)

In a published opinion, the Court granted the Board's application for enforcement in part, denied it in part, and remanded for further proceedings. 

The employer operates a Hilton Hotel in Los Angeles.  In May 2006, approximately 70 to 100 employees gathered in the employer's cafeteria to protest the suspension of a coworker who supported the union's campaign.  Despite the employer's exhortations to go back to their shifts, most of the employees remained in the cafeteria, demanding to speak with one of two employer managers about their coworker's suspension.  Ultimately, the protest lasted 90 minutes, during which time the employer suspended 77 of the assembled workers for 5 days.  Applying the ten factors in Quietflex Manufacturing Co., 344 NLRB 1055 (2005), the Board found the work stoppage to be protected by the Act, despite its occurrence on company property, and that the suspensions were therefore unlawful. 

The Court, while agreeing with the Board’s assessment of most of the Quietflex factors, found no substantial evidence supporting the Board's finding that the employer had no grievance policy that would have allowed the employees to present grievances to management.  To the contrary, the Court viewed the employer's "open door" policy as providing a path for grievances, and rejected the Board's interpretation of that policy as applying only to individual, not group, grievances.  Finding no substantial evidence supporting that factor, the Court remanded the case to the Board for reconsideration of the Quietflex factors.

The Court enforced the Board's order with respect to its finding that the employer unlawfully issued warnings to five known union supporters for violating a facilities use policy.  The Court agreed with the Board that the employer knew of the employees' protected activity and selectively enforced the facilities use policy against them because of that activity.  Finally, the Court summarily enforced a half-dozen other violations that the employer failed to properly raise before the Court.

The Court's opinion is available here

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Decisions of Administrative Law Judges

Jason Lopez’s Planet Earth Landscape, Inc. (31-CA-29817, et al.; JD(SF)‑45‑11) Nipomo, CA.  Charges filed by Laborers Pacific Southwest Regional Organizing Coalition, Laborers’ International Union of North America.  Administrative Law Judge Gerald M. Etchingham issued his decision on December 5, 2011.

L&W Engineering, Inc. (7-CA-53708; JD(ATL)-34-11) Belleville, MI.  Charge filed by an Individual.  Administrative Law Judge George Carson II issued his decision on December 5, 2011.

Norquay Construction, Inc. (28-CA-23412; JD(SF)-46-11) Tempe, AZ.  Charge filed by an Individual.  Administrative Law Judge Lana H. Parke issued her decision December 6, 2011.

First Student, Inc. (36-CA-10762, et al.; JD(SF)-47-11) Molalla, Lake Oswego and Gresham, OR.  Charges filed by Oregon School Employees Association.  Administrative Law Judge John J. McCarrick issued his decision on December 7, 2011.

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