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Summary of NLRB Decisions for Week of January 21-25, 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

C & G Distributing Company, Inc.  (09-CA-078875, 359 NLRB No. 53) Versailles, OH, January 24, 2013.

The Board adopted the administrative law judge’s finding, relying on Bethlehem Steel, 136 NLRB 1500, 1502 (1962), affd. in relevant part sub nom. Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964), that the employer did not violate the Act by ceasing to honor employees’ dues-checkoff authorizations after the expiration of the parties’ collective-bargaining agreement.  The Board noted that although in WKYC-TV, Inc., 359 NLRB No. 30 (2012), it overruled Bethlehem Steel and its progeny “to the extent they stand for the proposition that dues checkoff does not survive contract expiration,” it did so prospectively only.  359 NLRB No. 30, slip op. at 8-9.  Accordingly, the Board adopted the judge’s finding that, because the employer was privileged under Bethlehem Steel to cease honoring the dues-checkoff arrangement after the expiration of the parties’ collective-bargaining agreement, the employer did not violate the Act as alleged. 

Charge filed by General Truck Drivers, Warehousemen, Helpers, Sales and Service and Casino Employees, Teamsters, Local 957, affiliated with the International Brotherhood of Teamsters.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on October 17, 2012.  Chairman Pearce and Members Griffin and Block participated.

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DirectTV U.S. DirecTV Holdings, LLC  (21-CA-039546, 359 NLRB No. 54) Riverside, CA, January 25, 2013.

The Board found that the respondent maintained four unlawful work rules.  These rules contained unlawful restrictions on employee communications with the media regarding labor disputes and unlawful restrictions on employee communications with NLRB agents.  The Board additionally found that the respondent’s confidentiality rules unlawfully restricted employees from discussing their wages, discipline, performance ratings, and other terms and conditions of employment, as well as unlawfully prohibited protected employee communications with third parties such as union representatives and governmental agencies.   

The Board found, however, that a fifth work rule maintained by the respondent concerning employee use of the respondent’s systems, equipment, and resources was lawful under the Board’s decision in The Register-Guard, 351 NLRB 1110 (2007), enfd. in part sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).  The Acting General Counsel, joined by the charging party, requested that the Board revisit that decision.  Chairman Pearce and Member Griffin raised the question of whether Register-Guard was correctly decided, but they declined to address the issue in this case. 

With respect to the rules found to be unlawful, the Board found that the respondent’s effort to clarify those rules did not amount to a sufficient repudiation of the rules so as to preclude unfair labor practice liability.   The Board explained that the respondent’s purported repudiation was not timely, as it took place nearly a full year after it promulgated the rules, and even then the respondent did not do so until after the NLRB had issued the complaint in this case.  The Board moreover observed that the respondent had failed to effectively repudiate its misconduct because it did not admit wrongdoing. 

Addressing the appropriate remedial relief arising from the respondent’s maintenance of the unlawful rules, the Board applied its traditional order directing immediate rescission of the rules, to ensure that employees may freely engage in protected activity without fear of being subjected to the unlawful rules.  The Board further determined that because the unlawful rules were maintained on a company-wide basis throughout the United States, the respondent would be ordered to post the Board’s remedial Notice on a company-wide basis at all its facilities where the unlawful rules were in effect. 

Finally, the Board found that the respondent unlawfully discharged one of its installers employed at its Riverside, California, facility, in retaliation for that employee’s forceful statements in favor of unions made at a mandatory employee meeting conducted by one of the respondent’s vice-presidents.   

Charge filed by International Association of Machinists and Aerospace Workers, District Lodge 947, AFL-CIO.  Administrative Law Judge Gerald A. Wacknov issued his decision on December 13, 2011.  Chairman Pearce and Members Griffin and Block participated. 

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

CS Construction, Inc.  (28-RC-080331) Phoenix, AZ, January 23, 2013.  After reviewing the record in light of the exceptions and briefs, the Board adopted the hearing officer’s findings and recommendations only to the extent consistent with this decision and found that a certification of representative should be issued.   Petitioner – Operative Plasterers’ and Cement Masons’ International Association, Local 394.  Chairman Pearce and Members Griffin and Block participated.

Southern Monterey County Memorial Hospital, Inc. d/b/a George L. Mee Memorial Hospital  (32‑RC‑090886) Greenfield & King City, CA, January 25, 2013.  With no exceptions having been filed, the Board adopted the hearing officer’s findings and recommendations and directed that the Regional Director open, comingle and count ballots and issue the appropriate certification.  Petitioner – National Union of Healthcare Workers.

C Cases

Ace Masonry, Inc. d/b/a Ace Unlimited and Bella Masonry, LLC alter egos  (03‑CA‑073540, et al.) Ithaca, NY, January 23, 2013.  With no statement of exception having been filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and ordered the respondents to take the recommended action.  Charges filed by International Union of Bricklayers and Allied Craftworkers, Local 3.

CC 1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers  (24‑CA‑011018, et al.) Cayey, PR, January 24, 2013.  Order denying the employer’s motion for reconsideration.  Charges filed by individuals. Chairman Pearce and Members Griffin and Block participated.

SK USA Shirts  (22-CA-087198) Garfield, NJ, January 24, 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 Local 947, USWU, I.U.J.A.T.

Service Employees International Union United Healthcare Workers-West  (32‑CB‑090994) Walnut Creek, CA, January 24, 2013.  Order denying the union’s petitions to revoke subpoena ad testificandum issued to an employee and subpoena duces tecum issued to the union’s custodian of records.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

Local 342 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada  (20‑CB‑077499) Concord, CA, January 25, 2013.  With no statement of exceptions having been filed, the Board adopted the findings and recommendations of the administrative law judge’s decision and dismissed the complaint.  Charge filed by an individual.

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Appellate Court Decisions

Pessoa Construction Co., Board Case No. 05-CA-034547 (reported at 356 NLRB No. 157) (4th Cir. decided January 25, 2013)

In an unpublished opinion, the Fourth Circuit enforced the Board’s order in this case involving a Maryland highway contractor’s creation of an impression of surveillance and discrimination against an employee in retaliation for his union activities, and its unlawful unilateral modification of the employees’ job duties.

In 2008, the union became the representative of the Company’s workers.  At a union meeting shortly after the union was certified, employee W.M. asked whether employees were entitled to compensation for travel time to job sites and whether the Company accurately stated that it could not provide raises due to the union’s presence.  The next day, company president Pessoa asked an employee whether W.M. was at the meeting, and found out that he was indeed there.  Two weeks later, W.M. asked Pessoa for a raise, and Pessoa confronted W.M. about questions “somebody” asked at the union meeting about travel time pay.  Four days later, the Company told W.M. and another employee that they would no longer be allowed to drive their Company trucks to their worksites, meaning that they had to use their personal vehicles to make the 35-40 mile trip.  Shortly thereafter, W.M.’s work truck collided with a hydraulic excavator on a job site.  W.M. advised his foremen and the dispatcher of the accident, and one of them directed him to complete an accident report, which he did.  That evening, the Company discharged W.M., ostensibly for allowing the accident to occur, and then for not reporting it to Pessoa directly.

On this record, the Court agreed with the Board that the Company violated the Act in three ways.  First, the Court held that substantial evidence supported the Board’s finding that the Company created the impression of surveillance when Pessoa intimated to W.M. that it knew about his activity at the union meeting.  That finding satisfied the Court’s rule from NLRB v. Grand Canyon Mining, 116 F.3d 1039, 1046 (4th Cir. 1997), that an employer violates Section 8(a)(1) if it states “sufficiently specific information to convey the impression that the employer or its agents has conducted union surveillance.”  Second, the Company’s demonstrated union animus, its knowledge of W.M.’s protected activity, the close timing between that activity and the Company’s rule change and its discharge of W.M. provided sufficient substantial evidence to support the Board’s conclusion that the Company committed those adverse employment actions to punish W.M.’s union activity.  The Company’s defenses, according to the Court, were easily proven as pretextual, given that it only changed the vehicle policy for W.M. and one other employee, and reinstated it shortly thereafter, and that it previously had never discharged an employee for a single accident or failing to report it to Pessoa himself.  Finally, the Court agreed with the Board that the elimination of W.M.’s right to drive a company truck rather than his own car to his worksite was a mandatory subject of bargaining, and therefore, held that the Board properly determined that the unilateral change violated Section 8(a)(5) of the Act. 

The Court’s opinion is available here.

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Noel Canning, Board Case No. 19-CA-32872 (published at 358 NLRB No. 4) (D.C. Cir. decided January 25, 2013)

In a published opinion that issued on January 25, 2013, the D.C. Circuit granted the employer’s petition for review, holding that the President’s constitutional authority to make recess appointments extends only to appointments made during an intersession recess of the Senate to fill vacancies that first arise during such recess.  Because it concluded that the appointments at issue here did not meet those criteria, it found the President’s January 4, 2012 recess appointments to the Board invalid, granted the petition for review, and vacated the Board’s order. 

Noel Canning is a Washington state bottler with a long-time unionized workforce.  In 2010, it began negotiations for a new collective-bargaining agreement, ultimately agreeing to a contract with wage and pension language dependent on a subsequent employee vote.  Shortly after making this agreement, however, Noel balked and refused to sign the contract the employees selected.  On February 8, 2012, the Board (Members Hayes, Flynn, and Block) found that Noel’s refusal to execute an agreed-upon contract violated Section 8(a)(5) and (1) of the Act.  Noel petitioned for review of the Board’s order, arguing both that the Board’s order was not supported by substantial evidence and that the President’s recess appointments of Members Flynn and Block to the Board were invalid because they occurred when the Senate was not in recess. 

The D.C. Circuit agreed with Noel that the recess appointments were invalid.  Initially, however, it addressed several preliminary matters.  One, the Court held that reaching the constitutional issue was necessary, as Noel could not receive vindication on its statutory claims.  The Court held that, contrary to Noel’s argument, the Board’s findings of unfair labor practices were reasonable.  Two, the Court concluded that “we may exercise jurisdiction under section 10(e) because a constitutional challenge to the Board’s composition creates ‘extraordinary circumstances’ excusing the failure to raise it below.” 

The Court then turned to Noel’s constitutional challenge.  Pursuant to the Constitution’s recess appointments clause, the President had appointed Members Flynn, Griffin, and Block on January 4, 2012, one day after the Second Session of the 112th Congress began.  That clause provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the End of their next Session.”  The Court interpreted that clause to permit only “intersession” appointments (those made between distinct sessions of the Senate) and not “intrasession” appointments during recesses in the midst of a session.  Although the Eleventh Circuit had found intrasession recess appointments constitutional in Evans v. Stephens, 387 F.3d 1220 (2004), the Court found its reasoning “unconvincing.” 

Next, analyzing the language “[v]acancies that may happen during the Recess,” the Court added that the clause limits the President’s intersession recess appointment power to filling vacancies that first arise during the recess in which they are filled, which was not the case here.  The Court rejected the Board’s position, along with the Second, Ninth, and Eleventh Circuits’ determinations to the contrary.  It therefore found the Board’s order invalid. 

The court’s ruling rejects Presidential practice of both parties dating back more than 150 years.  The Court discounted the concern that the President’s inability to fill vacancies could impair government functioning, suggesting that Congress enjoys the power to correct those problems by providing that an appointee serves until a successor is confirmed or empowering the appointment of acting officials to discharge duties pending confirmation of a presidential nominee.

Judge Griffith concurred in the opinion.  He declined to address whether the clause’s “happen during the Recess” language requires a vacancy to first arise during the recess in which it is filled because the Court’s analysis of the intersession issue was sufficient to decide the case.  Judge Griffith explained: “If we need not take up a constitutional issue, we should not.”

The Court’s opinion is available here.

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Administrative Law Judge Decisions

Mountain View Country Club, Inc.  (21‑CA‑083930; JD(SF)‑05‑13) La Quinta, CA.  Charges filed by Laborers’ Pacific Southwest Regional Organizing Coalition, Laborers’ International Union of North America, AFL‑CIO.  Administrative Law Judge Mary Miller Cracraft issued her decision on January 24, 2013.

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