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Summary of NLRB Decisions for Week of February 27-March 2, 2012

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 Decision

NeilMed Products, Inc. (20-CA-035363; 358 NLRB No. 8) Santa Rosa, CA, February 29, 2012. 

The Board found that the employer unlawfully refused to allow the union’s business agent access to the employer’s facility.  The Board agreed with the administrative law judge that the employer failed to prove that the presence of the business agent, a former employee who the employer had terminated for a picket-line incident, would create ill will and make good-faith bargaining impossible, and agreed that the judge applied the proper legal standard.      

Charge filed by Teamsters Local 624, International Brotherhood of Teamsters, Change to Win Coalition. Administrative Law Judge Mary Miller Cracraft issued her decision on July 11, 2011.  Chairman Pearce and Members Hayes and Griffin participated.    

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International Brotherhood of Teamsters, Local 25 (New Line Productions/Avery Pix, Inc., et al.) (01-CB-010882,358 NLRB No. 15) Charlestown, MA, March 1, 2012.

The administrative law judge in this duty of fair representation case found that the respondent violated Section 8(b)(1)(A) and (2) by referring employees from its hiring hall without regard to objective criteria; by failing to maintain referral records and otherwise failing to follow its published referral rules; and by unlawfully refusing to refer charging party for employment. The respondent refers drivers for employment with contracting employers in the entertainment industry.

The Board adopted the judge’s decision.  Consistent with Stagehands Referral Service, LLC, 347 NLRB 1167 (2006), enfd. 315 Fed. Appx. 318 (2d Cir. 2009), the Board added a brief recapitulation of the judge’s analysis of the violation involving the charging party.

Charge filed by an individual.  Administrative Law Judge Mark D. Rubin issued his decision on June 7, 2010. Members Hayes, Griffin, and Block participated.

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Metro Painting Corporation (05-CA-036570, et al., 358 NLRB No. 12) Alexandria, VA, February 28, 2012.

The Acting General Counsel sought a default judgment in this case on the ground that the respondent failed to file an answer to the complaint.  The Board ordered the respondent to cease and desist from coercively interrogating employees about their union activities and support; promising benefits to employees in order to discourage them from selecting union representation; discharging or otherwise discriminating against employees for their union activities and for supporting the union or any other labor organization; discharging or otherwise discriminating against employees because they file charges or give testimony under the Act; and interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act.

Charge filed by Allied Trades, AFL-CIO, CLC, District Council 51 and Individuals.  Chairman Pearce and Members Hayes and Griffin participated.

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BaySys Technologies, LLC (05-CA-036314, 358 NLRB No. 14) Accomac, VA, February 29, 2012.

The Acting General Counsel sought a default judgment in this case on the ground that the respondent failed to file an answer to the compliance specification.  The Board ordered the respondent to make whole an employee by paying $51,786 in backpay and 401(k) matching contributions, plus additional backpay that may accrue in the absence of a valid offer of reinstatement, plus interest accrued to the date of payment, compounded daily, plus the respondent’s share of FICA contributions, and minus tax withholdings required by federal and state laws.

Charge filed by an individual.  Chairman Pearce and Members Hayes and Griffin participated.

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Knight Protective Services, Inc. (05-CA-036224, 358 NLRB No. 13) Lanham, MD, February 29, 2012.

The Acting General Counsel sought summary judgment in this case pursuant to the terms of an informal settlement agreement.  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; and interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act.

Charge filed by United Security & Police Officers of America (USPOA).  Chairman Pearce and Members Hayes and Griffin participated.

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Douglas R. Wilbur, Inc. d/b/a DRW Electric and its alter egos Brookeside Electric, Inc. and Dynomax Electric Corp.(07-CA-052789, et al., 358 NLRB No. 16) Whitmore Lake and Ann Arbor, MI, March 2, 2012.

The Acting General Counsel sought a default judgment in this case on the ground that the respondent failed to file an answer to the compliance specification.  The Board ordered the respondent to jointly and severally make whole the unit employees by paying the amounts listed in decision, plus interest accrued to the date of payment, minus all tax withholdings required by federal and state laws, and by making the payments due the benefit funds in the amounts set forth, plus interest accrued to the date of payment.

Charges filed by International Brotherhood of Electrical Workers, Local 252, AFL-CIO.  Chairman Pearce and Members Hayes and Griffin participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

American Security Programs, Inc. (04-UD-065063) Philadelphia, PA, February 29, 2012.  Decision and certification of results of election.  Petitioner – an individual. 

Westin Hotel (13-RC-062526) Itasca, IL, March 2, 2012.  Decision and certification of results of election.  Petitioner – UNITE HERE! Local 450.

C Cases

Local 190, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (UA), AFL-CIO and Greater Michigan UA, Local 190, Joint Training Committee (JTC) (07-CA-052652) Ann Arbor, MI, February 27, 2012.  Order adopting the administrative law judge’s decisions and respondent is to take the action set forth in the recommended order.  Charge filed by International Brotherhood of Teamsters, Local 164.

Hawaiian Dredging Construction Company, Inc. (37-CA-08316) Honolulu, HI, February 28, 2012.  Order denying respondent’s motion for summary judgment.  Charge filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 627.  Chairman Pearce and Members Hayes and Griffin participated.

Tom Arand, P.C. d/b/a Animal Care Clinic (16-CA-026387) Round Rock, TX, February 28, 2012.  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 Equal Justice Center.

GGNSC Springfield LLC d/b/a Golden Living Center – Springfield (26-CA-072684) Springfield, TN, February 29, 2012.  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 Association of Machinists and Aerospace Workers, AFL-CIO.

National Steel & Shipbuilding Company (21-CA-039300, et al.) Los Angeles, CA, March 1, 2012.  Order adopting the administrative law judge’s findings and conclusions as contained in his decision and ordering the respondent to take the action set forth in the recommended order.  Charges filed by individuals.

Efficient Design, Inc. (07-CA-060306) Birmingham, MI, March 2, 2012.  Order adopting the administrative law judge’s findings and conclusions as contained in his decision and ordering the respondent to take the action set forth in the recommended order.  Charge filed by International Union of Bricklayers and Allied Craftworkers (BAC), Local 9, AFL-CIO.

Dura-Fibre, LLC (30-CA-018988) Menasha, WI, March 2, 2012.  Order adopting the administrative law judge’s findings and conclusions as contained in his decision and ordering the respondent to take the action set forth in the recommended order.  Charge filed by an individual.

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Appellate Court Decisions

Galicks, Inc., Board Case No. 8-CA-36079 (reported at 355 NLRB No. 68) (6th Circuit decided March 2, 2012)

In a published opinion, the Court enforced the Board's order in the above-captioned case, agreeing that the employer unlawfully failed to recall laid-off employees, withdrew recognition, and refused to provide information.

The Court first agreed that substantial evidence supported the Board's finding that the employer, a sheet-metal contractor, acted with antiunion animus in refusing to recall laid-off journeymen.  In upholding the Board's conclusion that the General Counsel satisfied his initial burden, the Court noted record evidence showing the owner's statements that the employer was "not interested in being union," the suspicious timing in laying off the last working journeyman on the date the union petitioned for a Board election, and the employer's subsequent refusal to hire journeymen for traditional journeymen's work.  It then focused on the substantial evidence supporting the Board's rejection of the employer's affirmative defense, specifically the judge's refusal to credit the employer's claim that no journeyman work existed.  Then, the Court rejected the employer's claim that it need not bargain because there were no journeymen in the unit, agreeing with the Board that the dearth of unit members was directly attributable to the employer's unlawful refusal to recall.  It therefore enforced the Board's findings that the employer unlawfully withdrew recognition and refused to provide information.  In sum, the Court explained: 

We must determine whether the circumstantial evidence in the record can shoulder the weight of the Board’s inferences.  Circumstantial evidence, of course, can be tricky. “It may seem to point very straight to one thing,” but if we “shift [our] point of view a little, [we] may find it pointing in an equally manner to something entirely different.” Arthur Conan Doyle, The Boscombe Valley Mystery, in The Adventures of Sherlock Holmes 79–80 (New York, Harper & Brothers 1900). When this is the case—as it is here—we must defer to the Board’s findings.

In the course of its decision, the Court also noted that its review of the Board's decision is the same whether the Board and administrative law judge agree or disagree, rejecting boilerplate language suggesting that courts should take "greater care" when the Board and judge come to different conclusions.  That language, according to the Court, is "meaningless" because the Court's job is to review the Board's findings, and the judge's findings are "irrelevant to [that] inquiry."  Thus, the Court concluded, the "greater care" statement is "an empty platitude" that should be put "out to pasture." 

The Court's opinion is available here

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Palm Beach Metro Transportation, Board Case No. 12-CA-25842 (reported at 357 NLRB No. 26) (11th Circuit decided March 2, 2012)

In an unpublished opinion, the Court enforced the Board's order in full and denied the employer's petition for review, agreeing that the employer unlawfully reduced newly-unionized employees' work hours without bargaining. 

The employer, a newly organized transportation company providing services to a single client, reduced employee hours once its client cut back on the employer's services and after it purchased new equipment that eliminated time that bus drivers spent waiting for repairs.  First, the Court rejected the employer's claim that, because it was responding to factors (the exclusive servicing of its client and the use of buses) that existed prior to unionization, responding to those factors after unionization was part of the status quo.  The Court affirmed the Board's conclusion that "because [the employer] had never restricted the work schedules of employees before, it could not have a longstanding practice" of doing so.  As the Court explained, "[t]he preexistence of certain work conditions does not equate to an established policy of action within the company regarding changes in employment."  Rejecting the employer's second argument, the Court held that bargaining would not have been futile because external factors dictated the reduction in hours.  To the contrary, the Court explained, the employer pointed to no precedent supporting its argument and, indeed, the evidence showed that it actually hired new drivers during the period of decreased demand.  Therefore, the Court "found the NLRB's order to be well-reasoned and supported by substantial evidence on the record."

The Court's opinion is available here.

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Comau, Inc., Board Case No. 7-CA-52106 (reported at 356 NLRB No. 21) (D.C. Circuit decided March 2, 2012)

In a published opinion the Court denied enforcement of the Board's order and granted the employer's petition for review, finding that the employer lawfully implemented changes to its health-care plan following an impasse in negotiations.  

In 2008, the employer and the union were negotiating a successor contract when they reached impasse over health care costs.  The employer announced on December 8 that it was implementing its last, best offer as of December 22, and that its health care plan would go live on March 1, 2009.  Thereafter, between December 8 and March 1, the parties met to negotiate costs under the employer's proposal, while the employer made final arrangements to switch to its new health care system.  Ultimately, when the employer's health care plan became effective on March 1, the union filed unfair labor practice charges.  The Board found that, because the parties were bargaining in March 2009 and therefore no longer at impasse, the employer's implementation violated the Act, even though the parties were admittedly at impasse on December 8.  It reasoned that "[a] change in terms of employment cannot reasonably be viewed as ‘implemented’ for unit employees at a time when that change is not being applied to a single one of those employees and the employer has not passed a ‘point of no return’ committing it to making the change at all."

The Court disagreed.  It held that the employer announced implementation of its final offer, including the to-be-implemented-in-four-months-health-care-changes, on December 8.  It relied on the fact that the employer announced implementation on December 8, and, on that date, made clear that health care changes would come into effect on March 1, "reflecting the fact that the mechanics of transferring [employees] from the Old Plan to the Company Plan required extensive preparation."  The Court concluded that "the change to the Company Plan was 'reasonably comprehended' in [the employer's] last best offer and that [the employer] unilaterally implemented the offer—including the change to the Company Plan—on December 22, 2008."  It rejected the Board's argument that, as the Court characterized it, "a change not entirely effective on implementation must pass through stages of implementation until it reaches a stage of irreversibility..."

The Court's opinion is available here

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Decisions of Administrative Law Judges

Hearthside Food Solutions, LLC (09-CA-046342, et al., JD-06-12) London, KY.  Charges filed by Bakery, Confectionary, Tobacco workers and Grain Millers International Union, Local 280, AFL-CIO-CLC.  Administrative Law Judge Paul Buxbaum issued his decision on March 1, 2012.

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