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Summary of NLRB Decisions for Week of January 3-6, 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. Note: Some of the following decisions were issued earlier than the current week.

 

Summarized Board Decisions

2 Sisters Food Group, Inc. (21‑CA-38915, et al.; 357 NLRB No. 168) Riverside, CA, December 29, 2011.

The Board unanimously adopted the Administrative Law Judge’s findings that the Respondent unlawfully discharged a union supporter in the course of a union organizing campaign and maintained an unlawful rule prohibiting distribution of printed matter. The Board also unanimously reversed the judge and found that rules prohibiting leaving the plant or taking breaks without permission were lawful because they did not unlawfully restrict activity that the Act protects.

The Board, however, found that rules prohibiting the unauthorized solicitation of contributions, requiring employees to “work harmoniously with other employees,” and requiring arbitration of employment-related disputes did restrict protected activity and hence were unlawful. Member Hayes dissented on the basis that a reasonable employee would not read the rules to prohibit activity protected by the Act.  

The Board unanimously agreed with the judge’s recommendation that the election, which the union lost, be set aside based on objections related to the union supporter’s termination. The Board further found merit to an objection involving distribution of antiunion campaign paraphernalia on the day of the election in a manner that coerced employees by requiring them to choose whether to accept it in the presence of Respondent’s agents.  Member Hayes found it unnecessary to reach this latter objection. The Board did not rule on a further objection asserting that the Employer coerced employees by requiring them to attend a “captive audience” speech during which it required employees to listen to its antiunion message. Member Becker, dissenting, would have reached the issue and, overruling Babcock & Wilcox, 77 NLRB 577 (1948), found such meetings inherently coercive and thus independent grounds for setting aside the election.

Finally, the Board addressed in some detail the Petitioner’s request that the rerun election be held off the Employer’s premises.  Noting that current practice generally favors holding elections at the workplace if the employer consents, the Board stated that the Regional Director should consider the Petitioner’s request applying the standard set forth in Austal USA, LLC, 357 NLRB No. 40 (2011). The Board also elaborated further on the factors the Regional Director should consider in the exercise of his discretion, Member Hayes, dissenting, would have left intact the presumption favoring onsite elections subject to a Regional Director’s broad discretion. Specifically, he would not allow a petitioner’s preference for an off-site election to overcome the presumption in favor of holding the election there.

Charges filed by United Food and Commercial Workers, Local 1167. Administrative Law Judge Lana H. Parke issued her decision on June 10, 2010.  Chairman Pearce and Members Becker and Hayes participated.

***

Teamsters “General” Local Union No. 200, an affiliate of the International Brotherhood of Teamsters(30-CB-5303; 357 NLRB No. 192) Milwaukee, WI, December 29, 2011. 

The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(b)(2) of the Act by discriminatorily refusing to refer a hiring hall member for employment.  The Board also adopted the judge’s findings that the Respondent violated Section 8(b)(1)(A) by operating an exclusive hiring hall without consistently using objective criteria or factors in referring applicants for employment, and by refusing to provide the hiring hall member with pertinent information that would allow him to protect his referral rights.  The Board reversed, on due process grounds, the judge’s finding that the Respondent violated Section 8(b)(1)(A) by failing to publicize and make known its criteria for hiring hall referral.

Charge filed by an Individual.  Administrative Law Judge Earl E. Shamwell Jr. issued his decision on April 21, 2010.  Chairman Pearce and Members Becker and Hayes participated.

***

The American Bottling Company, Inc. d/b/a Dr. Pepper Snapple Group (8-CA-39327; 357 NLRB No.167) Twinsburg, OH, December 29, 2011.

The Respondent in this case operated two plants in Akron and Maple Heights, Ohio.  Teamsters Local 348 represented a single employee unit at the Akron plant.  There were two bargaining units at the Maple Heights plant.  Teamsters Local 293 represented one unit, and Teamsters Local 1164 represented the other unit.  The Respondent closed both plants and consolidated operations into one facility in Twinsburg, OH. 

The Board unanimously adopted the Administrative Law Judge’s finding that Respondent violated Section 8(a)(2) of the Act by granting recognition to Local 348 as the bargaining representative of a single unit at Twinsburg that included employees formerly represented by Locals 293 and 1164.  The Board also found unanimously, in agreement with the judge, that Respondent violated Section 8(a)(2) and (3) by executing a collective bargaining agreement with Local 348 and deducting dues from employee paychecks pursuant to the union security clause in the contract.  These violations were premised on the judge’s finding that Local 348 did not represent a majority of the Twinsburg unit employees.  Finally, the Board found, in unanimous agreement with the judge, that Respondent violated Section 8(a)(2) by assisting Local 348, after the move to Twinsburg,  in its solicitation of authorization cards from a group of merchandiser employees who had been represented by Local 293 at Maple Heights.

Subsequent to the judge’s decision, a 10 (j) injunction was granted that ordered Respondent to withdraw and withhold recognition from Local 348 and to cease deducting dues.  In light of this injunctive relief, the Board found it unnecessary to consider the Acting General Counsel’s remedial request that the notice be read to employees, and that access to the Twinsburg facility be granted to Locals 293 and 1164.  Member Hayes added that he would not grant these remedies in any event, for the reasons stated by the judge.  The unanimous Board granted the Acting General Counsel’s request for the notice to be mailed to the merchandiser employees.

Charge filed by Teamsters Local 293 a/w International Brotherhood of Teamsters.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on August 12, 2011.  Chairman Pearce and Members Becker and Hayes participated. 

***

Flaum Appetizing Corp. (29-CA-28502, et al.; 357 NLRB No. 162) Brooklyn, NY, December 30, 2011.   

In this backpay proceeding, the Board majority (Chairman Pearce and Member Becker) partially granted the Acting General Counsel’s motion to strike the employer’s affirmative defense that the discriminatees are precluded from backpay by Hoffman Plastics Compounds v. NLRB, 535 U.S. 137 (2002).  The Board majority held that applicable rules of pleading and policies underlying the Immigration Reform and Control Act of 1986 and the NLRA require that a Hoffman affirmative defense be specifically alleged, and that the employer did not comply with this specificity requirement.  The Board majority did not grant the motion as to four discriminatees who provided certain  testimony at the unfair labor practice hearing pertaining to their work status, but allowed the employer another opportunity – through an amended Bill of Particulars – to support a Hoffman affirmative defense as to these discriminatees.  Member Hayes, dissenting, found that the Supreme Court’s decision in Hoffman precludes the Board, as essentially a jurisdictional matter, from awarding backpay to undocumented workers. He thus concluded that placing constraints on inquiries into discriminatees’ immigration status by requiring employers to specifically plead a Hoffman affirmative defense is inconsistent with Hoffman principles, as further explicated by the Board in Mezonos Maven Bakery, 357 NLRB No. 47 (2011) and the Second Circuit in NLRB v. Domsey Trading Corp., 636 F. 3d 33 (2011).

The unanimous Board granted the Acting General Counsel’s motion for partial summary judgment as to the backpay period, formula, and amounts because the Respondent’s answer was insufficient.

Charges filed by Local 460/640, Industrial Workers of the World.  Administrative Law Judge Steven Davis issued his decision on February 18, 2009.  Chairman Pearce and Members Becker and Hayes participated.

***

Raymond Interior Systems (21-CA-37649, et al.; 357 NLRB No. 166) Orange, CA, December 30, 2011.

The Board granted in part and denied in part the Respondents' motion for reconsideration.  In the underlying decision, 355 NLRB No. 209, the Board adopted the Administrative Law Judge’s decision that the Raymond Interior Systems violated Section 8(a)(2) and (3) of the Act by unlawfully assisting the Carpenters Union in obtaining authorization cards, based on which Raymond unlawfully granted recognition under Section 9(a) to the Carpenters as the collective-bargaining representative of Raymond's drywall finishing employees, and that the Carpenters violated Section 8(b)(1)(A) by accepting that recognition.  The Board granted the Respondents' motion to modify the Board's Order to delete the requirement that Raymond provide its drywall finishing employees with alternate benefits coverage equivalent to the coverage that those employees possessed under the Carpenters' master agreement. The Board explained that the modification was consistent with recent Board precedent, and that alternate benefits coverage was not required to effectuate the key proscription in unlawful assistance and recognition cases: that an employer not recognize a union as a 9(a) representative of its employees unless and until an uncoerced majority of employees favors such representation.  The Board further explained that the Board's Order should not be interpreted as requiring a Board certification of representative before Raymond may lawfully recognize the Carpenters (or any other labor organization) as its employees' 8(f) collective-bargaining representative.   

The Board denied the motion, however, to the extent it asserted the Board erred in failing to decide whether the Confidential Settlement Agreement (CSA) reached between Raymond and the Carpenters constituted a valid 8(f) agreement that was not invalidated by Raymond's acts of unlawful assistance.  The Board observed that a finding that the CSA constituted a valid 8(f) agreement would not affect the Board's determination that Raymond unlawfully recognized the Carpenters as the 9(a) representative of its drywall finishing employees.  

Charges filed by Painters Southern California Painters and Allied Trades District Council No. 36, International Union of Painters and Allied Trades, AFL-CIO.  Administrative Law Judge Burton Litvack issued his decision on November 10, 2008.  Chairman Pearce and Members Becker and Hayes participated.  Member Hayes did not participate in the underlying decision, but agreed with the disposition of the motion. 

***

International Brotherhood of Electrical Workers (IBEW), Local 48 AFL-CIO (36‑CD‑236; 357 NLRB No. 182) Vancouver, WA, December 30, 2011.

This is a jurisdictional dispute proceeding under 10(k) of the National Labor Relations Act.  The Employer filed a charge alleging that International Brotherhood of Electrical Workers, Local 48, AFL-CIO (IBEW) violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by International Longshore and Warehouse Union, Local 4 (IBEW).  The Board denied the ILWU’s motion to quash the notice of 10(k) hearing and awarded the work in dispute to employees represented by IBEW based on the factors of employer preference, current assignment and past practice, relative skills and training, and economy and efficiency of operations. 

Charge filed by Kinder Morgan Terminals and International Longshore and Warehouse, Local 4, AFL-CIO.  Hearing Officer Jessica Dietz issued her report on May 5, 2011.  Chairman Pearce and Members Becker and Hayes participated.

***

Entergy Mississippi, Inc., Employer-Petitioner (15-UC-149; 357 NLRB No. 178) Jackson, MS, December 30, 2011. 

A Board majority (Chairman Pearce and Member Becker) affirmed the Regional Director’s finding that transmission dispatchers and distribution dispatchers were employees, and thus were properly included in the bargaining unit.  Applying the Board’s decision in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), in which the Board clarified its standard for determining supervisory status, the Board concluded that the employer has failed to meet its burden to show that the dispatchers were statutory supervisors.  The Board concluded that the dispatchers did not responsibly direct employees since they were not held accountable for the actions of the field employees that they directed.  The Board further concluded that the dispatchers’ assignment authority did not amount to supervisory authority.  Member Hayes dissented.  He found the dispatchers were statutory supervisors under Section 2(11) of the Act based on their use independent judgment in responsibly directing field employees in the performance of tasks in response to power outages and other problem situations and assigning field employees to carry out their orders related to these matters and to executing and switching orders.

Petitioner –International Brotherhood of Electrical Workers, Locals 608 and 985, AFL–CIO.  Regional Director issued the decision on February 27, 2007.  Chairman Pearce and Members Becker and Hayes participated.

***

DTG Operations, Inc. (27-RC-8629; 357 NLRB No. 175) Denver, CO, December 30, 2011. 

A Board majority (Chairman Pearce and Member Becker) reversed the Regional Director’s findings that (1) the petitioned-for unit of rental service agents (RSAs) and lead rental service agents (LRSAs) at the Employer’s Denver International Airport rental car facility was not an appropriate unit for bargaining; and (2) instead, the smallest appropriate unit was a wall-to-wall unit of all 109 of the Employer’s hourly employees(including its return, lot, service, fleet, and exit booth agents, staff assistants, shutters, courtesy bus drivers, mechanics, and building maintenance technician).

Applying the principles set forth in its recent decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), the Board found, contrary to the Regional Director, that (1) the RSAs and LRSAs shared a community of interest, and (2) the Employer failed to demonstrate that the additional employees it sought to include shared an overwhelming community of interest with the RSAs and LRSAsSpecifically, the Board  found that the petitioned-for RSAs’ and LRSAs’ primary job functions and duties, skills and qualifications, uniforms, work areas, schedules, incentives, risks, and supervision were different from all other employees.  Accordingly, the Board remanded to the Regional Director to direct an election in the petitioned-for unit of RSAs and LRSAs.  Member Hayes dissented, finding that the majority’s result “provides further confirmation of the predictable effects of their outcome-driven Specialty Healthcare test for determining whether a unit is appropriate for bargaining.”  Member Hayes concluded that under the relevant precedent and his prior dissents to the Specialty Healthcare test, the Regional Director’s decision should be affirmed and the petition dismissed. 

Petitioner – Teamsters Local Union No. 455, International Brotherhood of Teamsters.  Regional Director issued the decision on January 28, 2011.  Chairman Pearce and Members Becker and Hayes participated.

***

Saint John’s Health Center (31-CA-29005, et al.; 357 NLRB No. 170) Santa Monica, CA, December 30, 2011.

The Board (Chairman Pearce and Member Becker) found that a hospital’s ban on the wearing of a “Saint John’s RNs for Safe Patient Care” ribbon in immediate patient care areas violated Section 8(a)(1) of the Act.  The Board reversed the Administrative Law Judge’s finding that the ban was presumptively valid.  In so ruling, the Board concluded that the presumption of validity did not apply to the prohibition at issue because it was a “selective ban” on a specific union insignia and that “special circumstances” did not justify the ban.  The Board did not reach the Judge’s finding that the ban was discriminatorily enforced. 

In the absence of exceptions, the Board adopted the judge’s finding that, under the second prong of the test in Tri-County Medical Center, 222 NLRB 1089 (1976), the Respondent’s off-duty employee access rule violated Section 8(a)(1) because it had not been clearly disseminated to all employees before it was enforced.  Further, ruling on an issue that the Judge did not address, the Board found the rule unlawful under Tri-County’s third prong as it did not uniformly prohibit off-duty employee access to the hospital for any purpose.

Member Hayes dissented regarding both the ribbon ban and off-duty employee access rule issues.  As to the ribbon ban, Member Hayes would have adopted the judge’s finding that the ban was presumptively lawful but would have reversed his discriminatory enforcement ruling.  As to the off-duty employee access rule, Member Hayes would have found that the rule comported with the third prong of the Tri-County test.  He disagreed with the majority’s conclusion that the rule discriminated against union activity.

Charge filed by the California Nurses’ Association National Nurses Organizing Committee.  Administrative Law Judge John J. McCarrick issued his decision on June 16, 2010.  Chairman Pearce and Members Becker and Hayes participated.  

***

Operative Plasterers' and Cement Masons' International Association; Operative Plasterers' and Cement Masons' International Association Local 200 (Standard Drywall, Inc.) (21‑CD‑00659, et al.; 357 NLRB 160) Corona, CA, December 30, 2011.

The Board adoptedthe Administrative Law Judge’s findings that Respondent Unions (Plasterers Local 200 and the International) violated Section 8(b)(4)(ii)(D) of the Act by filing and pursuing legal actions with an object of forcing the Employer to assign certain plastering work to Local 200-represented employees, contrary to prior 10(k) proceedings where the Board awarded the work to Carpenters’ represented employees.  Applying settled precedent, recently reaffirmed in Sheet Metal Workers, Local 27 (E.P. Donnelly), 357 NLRB No. 131 (December 8, 2011), the Board found that the Respondents’ actions had an illegal objective under an exception inBill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 737, fn. 5 (1983), which exception was not altered in BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002).   

Charge filed by Standard Drywall, Inc.  Administrative Law Judge John J. McCarrick issued his decision on February 11, 2008.  Chairman Pearce and Members Becker and Hayes participated. 

***

Raymond Interior Systems (21-CA-38492, et al.; 357 NLRB No. 193) Orange, CA, December 30, 2011.

The Board adopted the Administrative Law Judge’s findings that Respondent Raymond violated:  Section 8(a)(5) and (1) of the Act by withdrawing recognition from, and repudiating its agreement with, Plasterers, and by ceasing to make contributions to the Trust Funds; and Section 8(a)(3), (2) and (1) by recognizing Carpenters as the exclusive collective-bargaining representative of its plastering employees, signing a collective-bargaining agreement with it, and by threatening its employees with job loss if they did not join Carpenters.  The Board also adopted the judge’s findings that Respondent Carpenters violated Section 8(b)(1)(A) and (2) by accepting voluntary recognition and entering into a collective-bargaining agreement with Raymond covering Raymond’s plastering employees, by accepting Raymond’s unlawful assistance, and by giving away tools and cash to Raymond’s plasterers. 

Charges filed by Operative Plasterers’ and Cement Masons’ International Association,  Local 200, AFL-CIO.  Administrative Law Judge John J. McCarrick issued his decision on March 8, 2010.  Chairman Pearce and Members Becker and Hayes participated. 

***

Carnegie Linen Services, Inc. (2-CA-39560, et al.; 357 NLRB No. 188) Bronx, NY, December 31, 2011.   

The Board adopted the Administrative Law Judge’s findings that the employer, a commercial laundry, violated Section 8(a)(1) of the Act when it offered money to an employee to cease his union activity and inflicted bodily injury on him in response to his union activities.  The Board also adopted the judge’s finding that the employer violated Section 8(a)(1) and (3) by discharging that employee because he joined and assisted the union and engaged in concerted activities.

Charge/Petitioner – Laundry Dry Cleaning & Allied Workers Joint Board, Workers United, a/w Service Employees International Union.  Administrative Law Judge Steven Davis issued his decision on July 11, 2011.  Chairman Pearce and Members Becker and Hayes participated.

***

Chauffeurs, Teamsters, and Helpers, Local 771, affiliated with International Brotherhood of Teamsters and its Joint Council No. 53 (4-CB-10482; 357 NLRB No. 173) Quarryville, PA, December 31, 2011. 

The Board adopted the Administrative Law Judge’s finding that the Respondent Union violated Section 8(b)(3) of the Act by refusing to execute and repudiating an agreed-upon collective-bargaining agreement and a side letter agreement with the Employer. 

Charge filed by Pennsy Supply, Inc., d/b/a Ready-Mixed Concrete.  Administrative Law Judge John T. Clark issued his decision on July 27, 2011.  Chairman Pearce and Members Becker and Hayes participated.

***

HTH Corporation, Pacific Beach Corporation and Koa Management, LLC, a single employer, d/b/a Pacific Beach Hotel (37–CA–7311, et al.; 357 NLRB No. 177) Honolulu, HI, December 31, 2011. 

The Board adopted the Administrative Law Judge’s finding that a make-whole remedy for employees laid off from one of the restaurants in the Respondents’ hotel was not appropriate because the General Counsel had refused to litigate the issue at trial.  Member Hayes dissenting: had partially remanded this issue to the judge in a prior decision (356 NLRB No. 182). 

Charges filed by International Longshore and Warehouse Union, Local 142.  Administrative Law Judge Mary Miller Cracraft issued her decision on October 14, 2011.  Chairman Pearce and Members Becker and Hayes participated.

***

Newburg Eggs, Inc. (3-CA-27834, et al.; 357 NLRB No. 171) Woodbridge, NY, December 31, 2011.

The Board adopted the Administrative Law Judge’s finding that the employer violated Section 8(a)(1) of the Act and engaged in objectionable conduct by soliciting grievances on July 15, 2010, during the critical period before an election held on July 29, 2010.  The Board set aside the results of the election and directed that a new election be held. 

A Board majority (Chairman Pearce and Member Becker) adopted the judge’s finding that the Employer engaged in objectionable conduct and violated Section 8(a)(1) when it announced the hiring of a bilingual human resources manager.  Member Hayes dissented, finding that an employer may lawfully hire someone to improve communication within the workplace. 

A separate Board majority (Members Becker and Hayes) reversed the judge and found that the Employer did not violate Section 8(a)(1) or engage in objectionable conduct by promising employees future unspecified benefits or by expressing to employees that voting for union representation would be futile.  Chairman Pearce dissented and would uphold the judge’s findings. 

Charge/Petitioner – United Food and Commercial Workers, Local 342.  Administrative Law Judge Robert A. Ringler issued his decision on April 27, 2011 and a supplemental decision on June 14, 2011.  Chairman Pearce and Members Becker and Hayes participated.

***

Operative Plasterers’ & Cement Masons’ International Association Local 200, AFL-CIO and Operative Plasterers’ & Cement Masons’ International Association, AFL-CIO (21-CD-00673; 357 NLRB 179) Corona, CA, December 31, 2011.

The Board granted the General Counsel’s Motion for Summary Judgment and found that the Respondents (Plasterers Local 200 and the International) violated Section 8(b)(4)(ii)(D) by arbitrating a grievance with an object of forcing the Employer to assign certain plastering work to Local 200-represented employees, contrary to a prior Board 10(k) award of the work to Carpenters’-represented employees, and by filing a counterclaim in United States district court to enforce that arbitration award.  Applying settled precedent, recently reaffirmed in Sheet Metal Workers, Local 27 (E.P. Donnelly), 357 NLRB No. 131 (December 8, 2011), the Board found that the Respondents’ actions had an illegal objective under an exception inBill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 737, fn. 5 (1983), which exception was not altered in BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002).  The Board imposed a broad cease-and-desist order, based on the Respondents’ repeated 8(b)(4)(ii)(D) violations in this case and in Plasterers Local 200, AFL-CIO (Standard Drywall, Inc.) 357 NLRB No. 160 (December 30, 2011) (SDI-III), and ordered the Respondents to reimburse the Employer for its costs in defending against the arbitration and counterclaim. 

Charge filed by Standard Drywall, Inc.  Chairman Pearce and Members Becker and Hayes participated. 

***

Watkins Security Agency of DC (5-RC-16618; 357 NLRB No. 189) Washington, DC, January 3, 2012. 

The Board ordered a second election because the Employer, Watkins Security Agency of DC, did not post notices of election for 3 days as required by Rule 103.20 and there was no evidence of collusion between the Employer and either of the two competing Unions.  The Hearing Officer, however, in relying on Maple View Manor, 319 NLRB 85 (1995), recommended certifying the winning union because the election involved two unions.  The Board explained that it had never made the regional director’s decision its own because the Board did not actually grant review and then adopt the decision.  The Board saw 103.20 as a mandatory, bright-line rule that should not be applied any differently to a multi-union election than to a single-union election. 

Petitioner – United Security and Police Officers of America (USPOA) and International Union, Security, Police, and Fire Professionals of America (SPEPA).  Hearing Officer Maria G. Guerrero issued her decision on September 28, 2011.  Chairman Pearce and Members Hayes and Becker participated. 

***

Automatic Fire Systems (11-RC-06757; 357 NLRB No. 190) Hardeeville, SC, January 3, 2012.

The Board adopted the Hearing Officer’s findings and recommendations to sustain the Petitioner’s election objection based on the Employer’s omission from the Excelsior list of 8 eligible voters.  (The 8 omitted employees were eligible to vote under the construction industry’s Steiny/Daniel formula, which was expressly stated in the stipulated election agreement).  Adopting the Hearing Officer’s primary recommendation to set aside the election, the Board rejected the Employer’s argument that, consistent with the Hearing Officer’s alternative recommendation, the Board should instead remand the case for resolution of the challenged ballots to determine whether the omissions could have affected the election results.  The Board held that its decision in Woodman’s Food Markets, 332 NLRB 503 (2000), did not require that the omitted employees be determinative in order to establish the Employer’s lack of substantial compliance with its Excelsior list obligation; the omission of 36 percent of the eligible voters and the Employer’s lack of a legally sufficient reason for the omissions sufficed.  Nonetheless, even if it had been necessary to assess whether the omitted employees were determinative, the Board applied its normal approach to calculating margins of victory in election objection cases and found that the omitted employees could have been determinative.  Thus, based on the considerations discussed in Woodman’s, the Board directed that a second election be held.  Member Hayes concurred in the decision, writing separately only to disagree with the Board’s finding that the Employer’s actions “raise a serious question of bad faith.” 

Petitioner – Local Union 669, United Association of Journeymen, Apprentices of the Plumbing & Pipefittting Industry of the United States and Canada, AFL-CIO.  Hearing Officer issued her report on September 1, 2011.  Chairman Pearce and Members Becker and Hayes participated.

***

The Ridgewood Country Club (22-RC-13161; 357 NLRB No. 181) Paramus, NJ, January 3, 2012. 

In this representation case, the Board majority (Chairman Pearce and Member Becker) adopted the Administrative Law Judge’s recommendation to sustain the Union’s election objection based on the Regional Office’s failure to timely provide the Union with the Excelsior list of eligible voters’ names and addresses.  The Board set aside the results and directed a second election.  Member Hayes, dissenting, would have overruled the objection based on the Union’s failure to show that it was materially prejudiced by the late receipt of the list in its ability to communicate with unit employees.

Charge filed by Laborers International Union of North America, Local 78.  Administrative Law Judge Eleanor MacDonald issued her decision on January 13, 2011.  Chairman Pearce and Members Becker and Hayes participated.

***

D. R. Horton, Inc. (12-CA-25764; 357 NLRB No. 184) Deerfield Beach, FL, January 3, 2012.

The Board found that the employer, a home building company, violated Section 8(a)(1) of the Act by maintaining a mandatory arbitration agreement that did not allow its employees to file joint, class, or collective employment-related claims in any forum, arbitral or judicial.  The employer required its employees to sign the agreement as a condition of employment, and, based on the agreement, had rejected employees’ requests for class arbitration of claims under the Fair Labor Standards Act.

The Board found that by requiring only individual arbitration of employment-related claims and excluding access to any forum for collective claims, the employer interfered with employees’ Section 7 right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  The collective pursuit of workplace grievances through litigation or arbitration is conduct protected by Section 7 and the right under the NLRA to freedom of association.  Applying its test for unlawful workplace policies in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the Board found the mandatory arbitration agreement unlawful because it contains an explicit restriction on protected activity, and because employees could reasonably construe it to prohibit filing charges with the Board.

The Board found that its violation finding did not present a conflict between the NLRA and the Federal Arbitration Act’s policy favoring the enforcement of arbitration agreements because the FAA was not intended to disturb substantive rights.  The Board further found that even if there were a conflict, its finding accommodates the policies of the two statutes and is consonant with the Supreme Court’s FAA jurisprudence.

Charge filed by an Individual.  Administrative Law Judge William N. Cates issued his decision on January 3, 2011.  Chairman Pearce and Member Becker participated; Member Hayes was recused.

***

International Brotherhood of Teamsters, Local 391 (United Parcel Services) (11-CB-4150; 357 NLRB No. 187) Winston-Salem, NC, January 3, 2012.

The Board unanimously reversed the Administrative Law Judge and found that the Union violated Section 8(b)(1)(A) of the Act when its business agent stated that the “fucking scab [referring to the Charging Party/nonunion member employee] needs to be stopped” in retaliation for his filing a charge with the Board.  The Board found that a reasonable employee could construe the statement as a threat, and that the statement objectively suggests unpleasant repercussions for filing charges with the Board, regardless of the business agent’s intent.

Charge filed by an Individual.  Administrative Law Judge William N. Cates issued his decision on December 28, 2010.  Chairman Pearce and Members Becker and Hayes participated.

***

Piggy Wiggly Midwest, LLC (30‑CA-18574, et al.; 357 NLRB No. 191) Sheboygan, WI, January 3, 2012.

This case arose from the Respondent sale of two of its unionized grocery stores to franchisees. The Board adopted the Administrative Law Judge’s dismissals of allegations that the Respondent unlawfully failed to furnish requested information about fund transfers between the Respondent and franchisees and information about Respondent’s employees who have been employed at the franchisees; and further adopted his dismissal of the allegation that the Respondent’s one-month delay in answering the Union’s information request was unlawful. On due process grounds, the Board reversed the judge’s finding that the Respondent unlawfully failed to provide information about accrued vacation and holiday pay.

A majority (Chairman Pearce and Member Becker) adopted the judge’s findings that the Respondent violated Section 8(a)(5) and (1) of the Act by delaying the furnishing of requested information (including sales and franchise agreements) to the Union and failing to furnish requested information about the services it provided to the purchasers of its stores. The majority found that, while the sales/franchise agreements pertained to nonunit information, the Union explained at the hearing that it sought the information because it was concerned that the franchisees were alter egos of the Respondent.  Additionally, these concerns should have been apparent to the Respondent at the time of the request, triggering the Respondent’s duty to furnish the information.  The majority found that the Respondent’s failure to provide the information impeded the Union’s ability to engage in effects bargaining, and ordered a Transmarine-type bargaining remedy.

Dissenting, Member Hayes would require a union, at the time of a request, to apprise the employer of facts supporting a request for information not directly pertaining to the bargaining unit, which the union did not do here. He also found that the Union’s evidence in support of its concern about an alter ego relationship was typical of what one would expect in a franchise situation and was in any event insufficient to require the employer to provide the information.

Member Hayes included his positions disagreeing with electronic-notice posting requirements and the scope of the Transmarine remedy. 

Charges filed by United Food & Commercial Workers, Local 1473.  Administrative Law Judge David I. Goldmanissued his decision on March 28, 2010.  Chairman Pearce and Members Becker and Hayes participated

***

Dodge of Naperville, Inc. and Burke Automotive Group, Inc. d/b/a Naperville Jeep/Dodge, a single employer (13‑CA-45399; 357 NLRB No. 183) Lisle, IL, January 3, 2012.

This case arose from the Respondent’s closure of one of its auto dealerships as a result of the Chrysler Motors Bankruptcy, and its offer to hire unit mechanics from the closed facility at its surviving, but nonunion, dealership. The Board adopted the Administrative Law Judge’s findings that the Respondent is a single employer for purposes of the Act; that the Respondent violated Section 8(a)(1) of the Act by threatening unit employees that its remaining shop would never be unionized and that if employees struck their employment would be terminated, and Section 8(a)(5) and (1) by delaying providing information the Union requested and failing to bargain over the effects of the closing of its facility.

A majority (Chairman Pearce and Member Becker) adopted the judge’s finding that the Respondent: (1) violated Section 8(a)(1) by threatening unit mechanics that, upon rehire at the nonunion facility, they would no longer receive union benefits and that their continued employment would be in a non-union shop; (2) violated Section 8(a)(3) and (1) by constructively discharging two unit mechanics who could not afford to work under the new conditions; and (3) violated Section 8(a)(5) and (1) by withdrawing recognition from the Union, repudiating the collective-bargaining agreement with the Union, and unilaterally changing the terms and conditions of employment of bargaining-unit mechanics. In finding the withdrawal of recognition unlawful, the majority did not adopt the judge’s rationale, but found that the Respondent could not lawfully withdraw recognition from the Union upon the merger of the smaller group of represented mechanics from the closed facility with the larger group of unrepresented mechanics at the new facility without having bargained over the effects of the closure. The majority found that the effects bargaining obligation included bargaining over the terms and conditions of employment of the relocated employees at the new facility. Because the Respondent failed to engage in effects bargaining, it could not rely on its changes to employment terms in arguing that, because of the merger, the unit lost its distinct identity as a unit appropriate for bargaining. The majority also imposed a bargaining order. Dissenting, Member Hayes found that the unit lost its identity as an appropriate unit upon its lawful merger with the larger group of mechanics at the new facility. Effects bargaining in a plant relocation situation does not include bargaining over terms and conditions of employment at that facility if the union has not established majority status there. As the 6 relocated mechanics performed the same work in the same facility under the same supervision as the 14 non-represented mechanics, the unit lost its distinct identity as a unit appropriate for bargaining and the Respondent lawfully withdrew recognition. 

Member Hayes included his positions disagreeing with electronic-notice posting requirements and the scope of the Transmarine remedy. 

Charge filed by Automobile Mechanics, Local No. 701, International Association of Machinists and Aerospace Workers, AFL-CIO.  Administrative Law Judge Paul Bogas issued his decision on August 2, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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El Paso Electric Company (28-CA-20136-2; 357 NLRB No. 186) El Paso, TX, January 3, 2012.

In El Paso Electric Co., the Board on remand reversed the Administrative Law Judge and dismissed the sole remaining allegation that the Respondent violated Section 8(a)(5) and (1) of the Act by closing its Chelmont facility and transferring the bargaining unit customer service representatives (CSRs) to other facilities without notice or bargaining with the Union.  The Board found that the evidence in the record did not establish that the Respondent’s decision to close Chelmont was motivated by labor costs.  The evidence in the record indicated that the physical space at the existing Chelmont location was inadequate and would have remained inadequate even if remodeled due to its small size, and moving to a new location would have led to additional, ongoing operating costs.  The Board also did not find persuasive the judge’s reliance on the fact that the Respondent ultimately reduced labor costs by transferring two CSRs from Chelmont to positions already budgeted at another facility because the Respondent established that all evidence presented to its decision-making officials indicated that there would be no change in the number of CSRs and that, therefore, labor cost savings from filling such vacancies through transfers were not a decisional factor.  Finally, the Board found that indirect labor costs, properly defined, were not a factor in the Respondent’s decision to close Chelmont.  The Board disagreed with the judge’s finding that poor ergonomic work stations, a non-ADA compliant bathroom, climate control, and fire code issues were all factors indirectly affecting labor costs because these factors do not relate to efficiency and productivity, as the Board has defined indirect labor costs giving rise to a bargaining obligation.

Charge filed by International Brotherhood of Electrical Workers, Local 960, AFL-CIO.  Administrative Law Judge John J. McCarrick issued his decision on March 7, 2007.  Chairman Pearce and Members Becker and Hayes participated.

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Comau, Inc. (7-CA-52614, et al.;357 NLRB No. 185) Southfield, MI, January 3, 2012.

The Board (Chairman Pearce and Member Becker; Member Hayes dissenting in part) found that the Respondent Employer unlawfully withdrew recognition from the Charging Party Union as the exclusive collective-bargaining representative of the unit employees, because the disaffection petition on which the Employer relied was tainted by the Employer’s unremedied unfair labor practice reported at 356 NLRB No. 21 (2010).  The Board additionally found that the Employer and the Respondent Union violated the Act, respectively, by extending and accepting recognition, and by entering into a collective-bargaining agreement containing a union security clause at a time when the Respondent Union did not represent an uncoerced majority of the unit employees.  The Board further found that the Employer unlawfully threatened employees with discharge if they did not execute dues-checkoff authorization forms and that the Respondent Union unlawfully engaged in conduct that had a reasonable tendency to coerce employees to sign such forms.

In his partial dissent, Member Hayes stated that he would find that there is insufficient evidence that the Employer’s unfair labor practice caused the Charging Party Union’s subsequent loss of majority support, and that it is at least as likely that the Union’s loss of support was caused by its poor performance as a bargaining representative.  Consequently, he would dismiss the complaint allegations that the Employer violated the Act by withdrawing recognition from the Charging Party Union and that the Employer and the Respondent Union, respectively, violated the Act by extending and accepting recognition and by entering into a collective-bargaining agreement containing a union security clause.

Charges filed by Automated Systems Workers, Local 1123, affiliated with Carpenters Industrial Council, United Brotherhood of Carpenters and Joiners of America.  Administrative Law Judge Geoffrey Carter issued his decision on December 21, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Specialty Healthcare and Rehabilitation Center of Mobile, Inc.(15-CA-68248; 357 NLRB No. 174) Mobile, AL, December 30, 2011.

This is a refusal-to-bargain case in which the Respondent contested the Union’s certification as bargaining representative.  The order of the Board was that the Respondent 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 bargain unit; and in any like or relating manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing Energy Allied-Industrial and Service Workers International Union, AFL-CIO/CLC.  Chairman Pearce and Members Becker and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Appalachian Power Company (11-RC-06654) Roanoke, VA, December 30, 2011.  Decision on review and order.  Petitioner – International Brotherhood of Electrical Workers, Local 978.  Chairman Pearce and Members Becker and Hayes participated.

Plaza Healthcare and Rehabilitation Center (22-RC-13206) Elizabeth, NJ, December 31, 2011.  Decision and certification of representative.  Chairman Pearce is recused and did not participate in this matter.  Petitioner – 1199 SEIU, United Healthcare Workers East, NJ Region.  Members Becker and Hayes participated.

Washington Empowered Against Violence (5-RC-67955) Washington, DC, January 3, 2012.  Order amending the Regional Director’s decision to permit the counseling services supervisor to vote by challenged ballot, denying the Employer’s request for review in this and all other respects, and denying request for stay of election.  Petitioner – Washington-Baltimore Newspaper Guild, Local 32035 of the Newspaper Guild-Communications Workers of America, AFL-CIO, CLC.  Chairman Pearce and Members Becker and Hayes participated.

C Cases

Enjol Transportation, LLC (7-CA-53141, et al.) Detroit, MI, December 30, 2011.  Decision and order pursuant to a settlement stipulation.  Charges filed by International Brotherhood of Teamsters, Local 243.  Chairman Pearce and Members Becker and Hayes participated.

U.S. Security Associates, Inc. (22-CA-63206) Woodbridge, NJ, January 3, 2012.  Order granting in part and denying in part petition to revoke subpoenas.  Member Hayes dissented: would have granted the petition to revoke in full. Charge filed by SEIU, Local 32BJ.  Chairman Pearce and Members Becker and Hayes participated.

Hitachi Capital America Corp. (34-CA-13011) Norwalk, CT, January 3, 2012.  Order denying Respondent’s motion for summary judgment.  Charge filed by an Individual.  Chairman Pearce and Members Becker and Hayes participated.

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Appellate Court Decisions

Carnival Carting, Inc., Board Case No. No. 29-CA-20586 (reported at 355 NLRB No. 51) (2d Cir. decided January 4, 2012)

In an unpublished summary order, the Court enforced the Board’s order in full, agreeing that substantial evidence supported the Board's finding that two companies nominally separate, but controlled and operated by the same person, were a single employer, jointly and severally liable for the unlawful discharge of a prounion activist.  In so finding, the Court relied on the fact that the same individual controlled and managed each company; that the operations of both companies were located in the same family-owned building, where one of the companies operated rent-free; and that the same individual controlled labor relations for both.  The Court rejected the employer's claim that companies in different businesses could not be a single employer, as well as the employer's statute of limitations, laches, and bias arguments. 

The Court's order is available here.

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County Waste of Ulster, LLC, Board Case No. 2-CA-37437 (reported at 355 NLRB No. 64) (2d Cir. decided January 6, 2012)

In two opinions, one published and one unpublished, the Court enforced the Board's order and denied the employer's petition for review. 

Initially, in its published decision, the Court rejected the employer's claim that the Board should not have allowed the Board members who sat on the case in its pre-New Process 2009 two-member decision to sit on the three-member panel that decided the case after remand in 2010.  The Court noted that "[n]othing in the text of Section 3(b) [of the Act] or the Supreme Court's reasoning in New Process Steel addresses or even implicates how the Board should handle cases that are vacated and remanded."  Further, as the Court observed, "it is well-established that even a reversal on appeal does not preclude an adjudicator from deciding the same question on remand."  Thus, because the Board issued the decision with a proper three-member quorum, the Court agreed that the Board acted within its statutory authority.

In its unpublished summary order, the Court upheld the Board's finding that the employer, a garbage hauling company, unlawfully allowed representatives of an incumbent union to distribute a bonus on company premises, despite the pendency of an election against a rival.  The Court agreed that substantial testimonial and documentary evidence supported the Board's finding that union representatives distributed the bonuses, and that, once the incumbent union entered into a stipulated election agreement, it lost the benefit of incumbency that might have otherwise privileged the bonus distribution.  Finally, although the employer alleged that the Board's review of this case was cursory and inadequate after the remand of the original two-member decision, the Court found no evidence to rebut the presumption of regularity that attaches to agency decisionmaking.

The Court's published opinion addressing the employer's New Process arguments may be found here; its unpublished judgment on the merits here.

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Southern Power Co., Board Case No. 10-CA-37348 (published at 356 NLRB No. 43) (D.C. Circuit decided January 6, 2012)

In a published opinion, the Court enforced the Board's order. 

The employer, a power company, had contracted the operation of four facilities to different subsidiaries it owned.  After it terminated those contracts with the subsidiaries so it could operate the facilities directly, the employees' union, which had contractual relationships with the subsidiaries, asked the employer to bargain.  The employer refused.  The two-member Board found that the employer was a successor that enjoyed a bargaining obligation with each of the two units (one covering a single plant, one covering the other three), and the employer petitioned for review in the D.C. Circuit.  Following New Process, the D.C. Circuit remanded the case for decision by a properly-constituted panel, which ultimately issued an order incorporating the result and reasoning of the prior decision.  The employer again petitioned for review.

On review, the D.C. Circuit agreed that the employer was a successor, relying on the fact that the employer retained the entire workforce and maintained all significant terms and conditions of employment without alteration. Also importantly, the Court noted that the employer, as the owner of the subsidiaries, enjoyed a closer relationship with the predecessor than most successors, and it rejected the employer's claim that its larger size or previously nonunion status precluded successorship.  The Court also agreed that separate units, rather than a single company-wide unit, were appropriate.  

The Court rebuffed the employer's post-New Process procedural claim that the three-member Board rushed to decide the case without reasoned decisionmaking, finding that the employer's failure to first raise the claim to the Board deprived the Court of jurisdiction to hear it.  Finally, the Court found two other defenses procedurally barred, including a claim that the unions were unlawfully recognized over 10 years ago, noting that "[b]ecause nearly ten years have passed since the unions were recognized, NLRA Section 10(b)--requiring any challenges to the initial majority status of a union to be made within six months of its recognition--bars this claim."  

The Court's opinion is available here.

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Decisions of Administrative Law Judges

Three D, LLC d/b/a Triple Play Sports Bar and Grille (34-CA-12915, et al.; JD(NY)-01-12) Watertown, CT.  Charges filed by Individuals.  Administrative Law Judge Lauren Esposito issued her decision on January 3, 2012.

United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (UA), Local 190, AFL-CIO and Greater Michigan UA, Local 190, Joint Training Committee (JTC) joint employers (7-CA-52652; JD-01-12) Ann Arbor, MI.  Charge filed by International Brotherhood of Teamsters, Local 164.  Administrative Law Judge Earl E. Shamwell Jr. issued his supplemental to decision on January 6, 2012.

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