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Summary of NLRB Decisions for Week of February 25 - March 1, 2013

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

Kawa Sushi, Inc. a.k.a. Kawa Sushi 8 Avenue Inc. d/b/a Kawa Sushi Restaurant  (02‑CA‑039736, 359 NLRB No. 70) New York, NY, February 28, 2013.

The Board adopted the administrative law judge’s findings that the employer violated Section 8(a)(1) of the Act by threatening an employee with discharge on two occasions because of his protected concerted activity.  The Board also adopted the judge’s finding that the employer violated Section 8(a)(1) by failing and refusing to reinstate the employee based on his protected concerted activity.

Charge filed by 318 Restaurant Workers Union.  Administrative Law Judge Michael A. Marcionese issued his decision on September 19, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Lee’s Industries, Inc. and Lee’s Home Health Services, Inc. and Lee’s Companies, Inc.  (04‑CA-036904, 359 NLRB No. 69) Philadelphia, PA, February 28, 2013.

In this supplemental decision and order, the Board granted the Acting General Counsel’s motion for default judgment awarding backpay to an individual discriminatee.  Although the Board recently adopted two new backpay remedies in Latino Express, Inc., 359 NLRB No. 44 (2012), the Board in Lee’s Industries noted in a footnote that those remedies were not included in this case because the underlying order has been enforced by a court of appeals, and thus the Board lacks jurisdiction to modify it.  The Board also noted, however, that nothing in Latino Express prevents the Acting General Counsel from requesting that the Board modify a previously issued order in a pending case to include an applicable remedy, where the Board still has jurisdiction to do so. 

Charge filed by an Individual.  Chairman Pearce and Members Griffin and Block participated.

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CG’s Lawn & Janitorial Service, LLC  (15-CA-019117, et al., 359 NLRB No. 64) Ft. Rucker, AL, February 28, 2013.

Having found that the respondent had engaged in certain unfair labor practices, the Board ordered it to cease and desist.  Specifically, having found that the respondent violated the Act by disciplining the employees named in this case and other similarly situated employees and terminating an employee for engaging in a concerted work stoppage, assisting the union, and engaging in concerted activity.  The respondent was ordered to remove from its files any and all references to the unlawful discipline of the employees, notify each of them in writing that this had been done, and that it would not be used against them in any way.

Charges filed by Industrial Technical & Professional Employees Union, OPEIU, Local 4873.  Chairman Pearce and Members Griffin and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Newark Portfolio, LLC  (22-RC-081108) Newark, NJ, February 27, 2013.  In light of the employer’s exceptions and brief, the Board adopted the hearing officer’s findings and recommendations, as modified, and found that a certification of representative should be issued.  Petitioner – Laborers International Union of North America, Local 55.  Chairman Pearce and Members Griffin and Block participated.

Wendell H. Stone, Inc. T/D/B/A Stone & Company, Inc.  (06-RC-090306) Pittsburgh, PA, February 28, 2013.  With no exceptions having been filed, the Board adopted the hearing officer’s  findings and recommendations and directed the Regional Director to open and count ballots.  Petitioner – International Union of Operating Engineers, Local 66, 66A, B, C, D, O and R, AFL-CIO. 

Resource Reclamation Toledo, LLC  (08-RC-091320) Toledo, OH, February 28, 2013.  With no exceptions having been filed, the Board adopted the hearing officer’s findings and recommendations and directed the Regional Director to open and count ballots.  Charge filed by Teamsters, Local 20 a/w International Brotherhood of Teamsters.

Cliff House Senior Living, L.P., d/b/a Residences at Chestnut Ridge  (04-RC-080782) Chester, PA, March 1, 2013.  The Board adopted the hearing officer’s recommendations to overrule the objections.  Regarding one of the objections, Objection 2, the Board overruled on the basis that the record failed to establish that objectionable conduct occurred.  Regarding Objections 3 and 4, the Board does not rely on the hearing officer’s analysis that management comments, if credited, would nonetheless be protected by Section 8(c).  Petitioner – District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

C Cases

Nexeo Solutions, LLC  (13-CA-046694, et al.) Willow Springs, IL, February 25, 2013.  Order granting the request of the Service Employees International Union and the American Federation of Labor-Congress of Industrial Organizations for permission to file Brief Amicus Curiae.  Charges filed by Teamsters, Local 70, Brotherhood of Teamsters.

International Brotherhood of Teamsters, Local 107  (04-CB-084647, et al.) Chester, PA, February 25, 2013.  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 Eureka Stone, Quarry, Inc. d/b/a JDM Materials Company.  Chairman Pearce and Members Griffin and Block participated.

Communications Workers of America and Communications Workers of America, Local 4309 (AT&T Teleholdings, Inc., d/b/a AT&T Midwest and the Ohio Bell Telephone Company – Employer)  (08-CB-010487) Cleveland, OH, February 26, 2013.  Order denying the respondents’ motion to strike the Acting General Counsel’s opposition to respondents’ motions to reopen or supplement the record and receive further evidence.  Charge filed by an individual.

Fresh Direct, LLC  (29-CA-093054, et al.) Long Island City, NY, February 26, 2013.  Order denying the employer’s petition to revoke subpoena duces tecum.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

Lintrac Services, Inc.  (13-CA-091818) Chicago, IL, February 26, 2013.  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 International Brotherhood of Teamsters, Local 710. 

Fresh Direct, LLC  (29-CA-088077, et al.) Long Island City, NY, February 26, 2013.  Order denying the employer’s petition to revoke subpoena duces tecum.  Charges filed by individuals.  Chairman Pearce and Members Griffin and Block participated.

GEO Group (The), Inc.  (28-CA-076869, et al.) Florence, AZ, February 26, 2013.  Order denying the Acting General Counsel’s request for special permission to appeal the administrative law judge’s postponement of the hearing on the merits of the case, taking under advisement the settlement agreements proposed by the parties, and declining to hear statements from alleged discriminatees.  Charges filed by International Union, Security, Police and Fire Professionals of America (SPFPA), Local 827.  Chairman Pearce and Members Griffin and Block participated.

Veolia Transportation Services, Inc.  (28-CA-086419) Las Vegas, NV, February 27, 2013.  Order approving a Formal Settlement Stipulation between the parties and specifying actions the employer must take to comply with the National Labor Relations Act.  Charge filed by Amalgamated Transit Union, Local 1637, AFL-CIO-CLC.  Chairman Pearce and Members Griffin and Block participated.

Certainteed Corp.  (08-CA-73922) Milan, OH, February 28, 2013.  Order granting the employer’s motion to dismiss the complaint and defer the parties’ dispute to their contractual grievance-arbitration procedure.  Charge filed by United Steelworkers International Union, Local 363, a/w the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.  Chairman Pearce and Members Griffin and Block participated. 

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Appellate Court Decisions

PACCAR, Inc., Board Case No. 26-CA-23225 (reported at 357 NLRB No. 13) (6th Cir. decided under the name UAW, Local 1832 v. NLRB, February 28, 2013).

In an unpublished opinion, the Court denied the union’s petition for review, finding that substantial evidence supported the Board’s determination that the employer’s ongoing refusal to provide bargaining information did not convert an economic lockout into an unlawful one.

During contentious bargaining negotiations in 2008, the employer proposed a number of major economic and noneconomic changes to the contract, including a new tiered wage system, higher healthcare contributions, additional outsourcing, and reorganization of operational structure.  In negotiations, the employer stated that the facility had “high labor costs” compared to its other locations.  This prompted the union to request information about operating costs at the other facilities, which the employer refused to give.  Negotiations continued, and several weeks later, the employer locked out its employees.  The Board found that the employer’s refusal to provide the relevant information violated Section 8(a)(5) of the Act.  Yet, the Board continued, that violation did not convert the lockout from lawful to unlawful by prolonging the negotiations because the outstanding information request “did not materially affect the progress of negotiations,” given the importance of unrelated unresolved issues.

The union petitioned for review of the Board’s order finding the lockout lawful, which the Court denied.  The union conceded that, at the time of the lockout, there were “many unresolved issues still on the table.”  And the Court rejected the union’s focus on several mentions of the information request during negotiations, agreeing with the Board that the “few passing references” did not “demonstrate that the nondisclosure impeded the negotiations,” nor did the union object to the employer’s noneconomic proposals “on account of the withheld information.”  Finally, the union’s post-hoc speculation about the “significance of the withheld information” did not impede bargaining. 

The Court’s opinion is available here.

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Arkema, Inc., Board Case No. 16-CA-26371 (reported at 357 NLRB No. 103) (5th Cir. decided February 28, 2013)

In a published opinion, the Court denied the Board’s application for enforcement of its order in the above-captioned case.  This case arises out of an August 2008 decertification election at a Houston-area chemical manufacturing plant, which the union lost 18-17.  The Board found four violations of the Act, but the Court reversed each one.  

1.  Discipline of M.S.  In July 2008, one experienced employee, M.S., told a junior female coworker that the union needed her support and that "relationships would change at the plant" without it.  Although he later testified that he only meant that he would not help her with arduous physical tasks, the coworker reported the remark to management, claiming that M.S. threatened that he would not help her in an emergency if she did not support the union.  The next day, management issued M.S. a written warning for failing to comply with Arkema's anti-sexual harassment policy, specifically for making intimidating remarks towards a female coworker by threatening her job if she remained nonunion.  

Although the Board found that Arkema violated Section 8(a)(1) by disciplining M.S. without having a good-faith belief that he engaged in the misconduct alleged and without any proof of misconduct itself, see NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964), the Court disagreed.  Instead, the Court (quoting the dissenting Board members) concluded that Arkema could reasonably have believed that M.S. “threatened to retaliate against [his coworker] because of her exercise of Section 7 rights . . . that could jeopardize both [her] continued employment and her physical safety.”  Further, the Court held that, “[e]ven if the incident began as protected activity, [M.S.] escalated the encounter, thus losing the protection of the Act” by threatening his coworker’s safety.  Specifically, his “conduct exceeded persuasion—he sought to threaten and intimidate” and “communicate[d] to her that he would withdraw the help on which she depended to do her job.” Thus, the Court held that Arkema had a good faith basis for disciplining M.S. for unprotected misconduct.

2.  Anti-Harassment Rule.  Shortly thereafter, Arkema sent a memo to bargaining unit employees, informing them that they had a right not to be harassed and urging employees to contact the Board's regional office if they suffered “any” harassment.  The Board concluded that employees would reasonably read this email to preclude protected “persistent union solicitation,” particularly in light of Arkema’s other unfair labor practices.  The Court, however, held otherwise, particularly given its rejection of the prior unfair labor practice finding: “[T]he request that employees should alert management if they ‘feel’ harassed [does not] transform a policy into prohibiting Section 7 activity; it is unclear what kind of objective requirement the Board would prefer for an employee to voice his concern.” 

3. Rejection of bargaining obligation.  Within 90 minutes of the ballot counting, Arkema announced to the bargaining unit via email that "the collective bargaining agreement no longer exists in this facility."  Within a week, it began talking directly to employees about workplace policies, then removed the union bulletin boards, and finally granted a unilateral wage increase.  Under Board law, it is unlawful for an employer to reject its bargaining obligation after a decertification election victory until the Board certifies the results.  W.A. Krueger, 299 NLRB 914 (1990).  Applying its own precedent, Dow Chem. Co. v. NLRB, 660 F.3d 637, 654 (5th Cir. 1981), however,  the Court refused to enforce the Board’s finding here, declining to revisit that precedent in light of a change in Board law governing withdrawal of recognition.

4.  Written warning to union president.  A week after the decertification election, management summoned union group president F.S. to a meeting, in which it alleged that he had thrown items around the shop, threateningly told a coworker that he was either “with him or against him,” and directed another coworker not to explain something to a colleague because he was non-union.  F.S. denied two allegations and explained the third.  Two weeks later, F.S. met with management as union president to discuss Arkema’s rejection of its bargaining obligations.  Mere hours later, management gave F.S. a written warning letter for violation of Arkema’s anti-harassment policy.  While agreeing that the warning constituted an adverse employment action, the Court rejected the Board’s Wright Line analysis, concluding that the General Counsel failed to prove unlawful motive.  In so holding, the Court relied on its previous rejection of the Board’s other unfair labor practice findings as proof of animus.  It then held that timing could not shoulder the burden alone, particularly in the absence of any other circumstantial evidence of improper motive.  Doing so, according to the Court, “would swallow the burden and the entire purpose of the Wright Line analysis . . . if a meeting and disciplinary letter, without any further evidence of anti-union animus, could never occur simultaneously with union activity.”

Finally, the Court reached out to overrule that portion of the Board’s order directing a new election, having found lawful the underlying actions on which the Board relied in rejecting the election results.  While “acknowledg[ing] that . . . Board orders of certification for representation elections are not directly reviewable,” the Court nevertheless “review[ed] the Board’s determination here, where the dispute over the election has resulted in a finding by the NLRB that unfair labor practices have been committed and Arkema refuses to bargain with the Union relying on the results of the election.” 

The Court’s opinion is available here

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Daycon Products Co., Board Case No. 5-CA-35043 (reported at 357 NLRB No. 52) (4th Cir. decided February 28, 2013)

In an unpublished decision, the Court remanded this contract modification case to the Board for a discussion of the applicability of the sound arguable basis test the Board set forth in Bath Iron Works, 345 NLRB 499 (2005), affirmed sub nom. Bath Marine Draftsmen Ass’n v. NLRB, 475 F.3d 14 (1st Cir. 2007).

In 2004, the employer made an error in calculating eight employees’ wage rates under the then-existing contract.  When the parties bargained for a successor agreement in 2007, they relied on the employees’ then-current wage charts that the employer provided to calculate proposals, and eventually reached a new contract that granted all employees 55¢ per hour raises.  Nearly two years later, the employer discovered the 2004 error, which had resulted in almost $80,000 in overpaid wages over five years.  After fruitless negotiations with the union over correcting the mistake, the employer did so unilaterally, reducing the eight employees’ pay and providing them a lump sum to make up for some of the economic hit.  The Board found that the contract implicitly incorporated the wage charges, and that the employer unlawfully modified the contractual wage rates in violation of Section 8(a)(5) and 8(d) of the Act.

On appeal, the Court first agreed that the Board properly distinguished two cases allowing an employer to correct mistakes without bargaining.  As the Court explained, “[n]otably absent from these cases . . . is an 8(d) analysis discussing an alleged contract modification,” as no contract was in effect in the employer’s cited precedent. 

Next, however, the Court concluded that the Board failed to discuss relevant precedent.  The Board’s decision in Bath Iron Works held that an employer ordinarily does not violate the Act’s prohibition on contract modification if it possesses a “sound, arguable basis” in the contract entitling it to make the unilateral modification.  Bath Iron, 345 NLRB at 502.  If a sound arguable basis exists, the dispute turns on a reading of the contract and the Board will refrain from finding “a mere breach of contract . . . in itself an unfair labor practice.”  NCR Corp., 271 NLRB 1212, 1213 (1984).  Here, the Board did not apply the sound arguable basis test in its decision, even though the employer urged it below.  Thus, although the Court could surmise that “the Board concluded that [the employer’s] interpretation of the CBA was not sound or arguable . . . because the Board failed to even mention the ‘sound arguable basis’ test, let alone apply it, we are left to guess at [the Board’s] reasoning.”  Therefore, the Court remanded the case “to give the Board a chance to expressly apply or distinguish the ‘sound arguable basis’ test.”

The Court’s unpublished opinion is available here.

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Special Touch Home Care Services, Inc., Board Case No. 29-CA-26661 (reported at 357 NLRB No. 2) (2d Cir. decided February 27, 2013)

In a published decision, the Court denied enforcement to the Board’s decision, rejecting the Board’s reasoning on remand and concluding instead that an employer lawfully disciplined home health care aides for failing to accurately confirm whether they planned to join a strike.

The employer provides home health services, employing 2,500 home health aides, 1,400 of whom are assigned to specific clients.  The employer maintains a rule that aides must call in prior to the start of a shift if they will not be at work.  The aides are not required to give a reason for any absence.  When aides cannot report for a shift, the employer sends a replacement.  On May 27, 2004, the union sent a 10-day notice under Section 8(g) of the Act notifying the employer that there would be a 3-day strike commencing on June 7 and ending on June 10.  During the week prior to June 7, at the behest of the New York State Department of Health, the employer contacted employees and asked if they would be taking any time off the following week.  Of those contacted, 75 employees indicated that they would be off either from June 7-9 or some portion of that time.  On June 7, 48 additional employees engaged in the strike.  When those employees attempted to return to work the following day, they were told not to report to work until further notice. The employer thereafter sent letters to the 48 employees stating that they had violated a company policy requiring them to call in if they will not be reporting to their assignments.  The employer ultimately permitted some strikers to return to work, although not all to their same client or schedule. 

The Board found that Section 8(g) of the Act only required unions, not employees, to give notice before striking, and the employer’s call-in requirement therefore was inconsistent with Congressional intent.  Accordingly, the refusal to immediately reinstate violated the Act.  In 2007, the Second Circuit remanded the case to the Board to consider the intersection of what it called “the plant rule doctrine,” which permits employers to maintain facially-neutral rules covering employee conduct on company time (like the employer’s call-in rule), and Section 8(g).  NLRB v. Special Touch Home Care Svcs., 566 F.3d 292 (2009).  On remand, the Board further analyzed the intersection between the employer’s rule and 8(g), and explained that “the union notification rule represented a compromise reached by legislators endeavoring to balance two competing interests: first, the previously limited rights of health care employees, and second, the special protection necessary for patient care.”  It also found that the aides’ failure to call in did not create an “imminent danger.” 

The Board again sought enforcement of its order, and, again, the Second Circuit denied it.  But first the Court agreed with the Board that “Congress’s decision to require union notification via Section 8(g) trumps [the employer’s] interests in enforcing its call-in rule, regardless of whether its argued basis for doing so is business-related or safety-oriented. . . .  [T]o hold otherwise would constitute a rejection of the balance struck by Congress in enacting Section 8(g).” 

The Court, however, continued, holding under the facts here that “the aides’ actions were unprotected because their uncorrected affirmative misrepresentations regarding their plans to strike in response to the pre-strike poll placed forty-eight of [the employer’s] patients in foreseeable imminent danger.”  Initially, the Court cited the underlying Decision and Order for the principle that “otherwise lawful strikers’ conduct is unprotected when employees ‘cease work without taking “reasonable precautions to protect” the employer’s plant, equipment, or patients “from foreseeable imminent danger due to sudden cessation of work.”’”  Then, it rejected the Board’s reliance on the fact that the 48 unexpected strikers caused no actual harm to their patients, explaining that the proper standard evaluated “the risk of harm, not its realization.”  Under that test, the Court concluded that the 48 strikers had created the risk of imminent harm to their unexpectedly unattended patients, who relied on the aides for physical, emotional, and housekeeping support.  As the Court explained, the “aides are the primary link between the nursing agency and the patients and their job is to observe the patients and ensure their safety”. 

The Court emphasized that its opinion was “not a roundabout way of establishing an individual employee notification rule.”  But, given that the employer was lawfully authorized to conduct the poll, the aides’ failure to respond accurately resulted in a lapse of care and, in the Court’s view, a risk of harm that justified forfeiting the Act’s protection.

The Court’s opinion is available here

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Administrative Law Judge Decisions

Smoke House Restaurant, Inc.  (31-CA-026240, et al., JD(SF)-04-13) Los Angeles, CA.  Charges filed by Hotel Employees and Restaurant Employees Union, Local 11, AFL-CIO.  Administrative Law Judge John J. McCarrick issued his decision on February 26, 2013.

Davies, Inc. d/b/a Dallas Glass  (19-CA-078239, JD(SF)-12-13) Salem, OR.  Charge filed by International Union of Painters and Allied Trades, District Council 5.  Administrative Law Judge Eleanor Laws issued her decision on February 26, 2013.                 

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