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Summary of NLRB Decisions for Week of July 1-5, 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

California Nurses Association, National Nurses Organizing Committee (Henry Mayo Newhall Memorial Hospital)  (31-CB-012913, 359 NLRB No. 150)  Valencia, CA, July 2, 2013.

The Board reversed the administrative law judge’s finding that the respondent union violated Section 8(b)(1)(A) of the Act by printing on the back cover of its collective-bargaining agreement with the employer a Weingarten statement informing bargaining unit employees about their right, upon request, to have a union representative present at an investigatory interview that an employee reasonably believes may result in discipline.  Unlike the judge, the Board found that the statement, when read as a whole, is not ambiguous and would not cause employees to reasonably believe that they are required to request the presence of a union representative.  However, the Board affirmed the judge’s finding that the respondent violated Section 8(b)(3) but only because the printing of the statement was contrary to the parties’ settled understanding on the issue of cover text.  The employer had previously objected to the respondent’s unilateral printing of a virtually identical Weingarten statement on a predecessor collective-bargaining agreement, and the parties entered into a bilateral non-Board settlement agreement at the time in which the respondent agreed to reprint the collective bargaining agreement with a blank back cover.  By again printing the Weingarten statement despite the parties’ clear understanding to not do so, the Board found that the respondent violated its statutory duty to bargain in good faith.

Charge filed by Henry Mayo Newhall Memorial Hospital.  Administrative Law Judge Mary Miller Cracraft issued her decision on July 9, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Albertson’s, LLC  (28-CA-023387, 023538; 359 NLRB No.147)  Albuquerque, NM, July 2, 2013.

The Board found, in unanimous agreement with the judge, that the respondent violated Section 8 (a)(1) of the Act during the union’s organizing campaign among grocery store employees by soliciting grievances from an employee and impliedly promising to remedy her grievances, surveilling employees’ organizing activities, threatening an employee with discharge, and creating the impression that her organizing activities were under surveillance.  The Board also found, in unanimous agreement with the judge, that the respondent violated Section 8(a)(3) and (1) by suspending and discharging an employee who was one of the principal union organizers.   Reversing the judge, the Board unanimously found that the respondent’s attorney, in preparing for the hearing, violated Section 8(a)(1) by interviewing an employee without providing him assurances against reprisals as required by the decision in Johnnie’s Poultry Co., 146 NLRB 770 (1964), and that respondent’s store manager separately violated 8 (a)(1) by requiring the employee to attend the interview against his will.

The Board unanimously adopted the judge’s dismissal of multiple allegations of 8(a)(1) and 8(a)(3) violations, and remanded to the judge a complaint allegation that the store manager violated 8(a)(1) by orally imposing a rule prohibiting employees from discussing the union.  The judge failed to address this allegation.

Charges were filed by an individual employee and by United Food and Commercial Workers Union, Local 1564.  Administrative Law Judge William L. Schmidt issued his decision on May 24, 2012. Chairman Pearce and Members Griffin and Block participated.

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Enterprise Leasing Company of Florida, LLC d/b/a Alamo Rent-A-Car  (12-CA-026588, et al.; 359 NLRB No. 149)  Miami, FL, July 2, 2013.

The Board agreed with the administrative law judge that the employer committed several unfair labor practices before it withdrew recognition of the union that tainted the decertification petition signed by a majority of the bargaining unit on which the employer based its withdrawal.  Specifically, the Board found that the employer unlawfully eliminated the employees’ short-term disability benefit without notice and an opportunity to bargain, told employees that the elimination was “because of their union contract,” directed an employee to collect more signatures for the decertification petition, and interfered with a union business agent’s access to the facility.  The Board, contrary to the judge, found that two supervisors did not unlawfully interrogate the leader of the decertification effort when they asked how many signatures he had collected, as there was insufficient evidence of the circumstances of the encounter to conclude an employee in his position would be coerced.  The Board concluded that the employer’s withdrawal of recognition from the union was unlawful both because its prewithdrawal unlawful conduct was casually connected to the decertification petition and because it promoted the decertification petition by directing the employee to get more signatures.  The Board accordingly found that the employer also committed several unfair labor practices after it withdrew recognition because it failed to bargain with the union.  The Board amended the remedy to provide that the employer must make employees whole for any loss caused by the elimination of the short-term disability benefit and to specify that it must pay dues owed the union from its own funds without recouping the amount from its employees and with interest.

Charges filed by Teamsters Local Union No. 769, affiliated with International Brotherhood of Teamsters.  Administrative Law Judge Michael A. Marcionese issued his decision on April 11, 2012.  Chairman Pearce and Members Griffin and Block participated.

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AC Specialists, Inc.  (12-CA-076395; 359 NLRB No. 159Tampa, FL, July 2, 2013.

The Board found that the two owners of a heating and air-conditioning company with a bargaining unit of three technicians unlawfully refused to recognize the union when the union asked for recognition on behalf of the technicians.  The Board found that the owners then acted unlawfully when they told the technicians that selecting the union would be futile, threatened one with discharge and another with arrest, interrogated all of them, and discharged all of them.  The Board reversed the judge in finding the interrogations unlawful, finding that the circumstances surrounding them were clearly coercive even though the three technicians were open union adherents.  The Board agreed with the judge that the discharge of the entire bargaining unit, together with the other unlawful conduct, warranted a bargaining order pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).  The Board also noted that the judge misconstrued the Acting General Counsel’s theory of the violation concerning the bargaining order Section 8(a)(5) of the Act when the judge dismissed the Section 8(a)(5) refusal-to-bargain allegation.  The Board found that the employer’s owners had engaged in outrageous and pervasive conduct making the holding of a fair election impossible and warranting a bargaining order given that all three technicians, obviously a majority of the unit, had asked the union to seek recognition from the owners on their behalf.  Additionally, the Board granted some special remedies.  The Board ordered a broad cease-and-desist order, citing Hickmott Foods, 242 NLRB 1357 (1979).  The Board also ordered that the Board’s notice be read aloud to the owners’ technicians, citing Homer D. Bronson Co., 349 NLRB 512, 515-516 (2007), enfd. mem. 273 Fed. Appx. 32 (2d Cir. 2008).  The Board found that the employer’s owners exhibited a general disregard for the technicians’ fundamental statutory rights and that these special remedies provided the technicians with assurance that their rights under the Act would be respected in the future.  However, the Board declined to order that its order be printed and read aloud in Spanish as well as English noting that the record did not present facts warranting this special remedy.

Charge filed by United Association of Plumbers, Pipefitters & HVAC Refrigeration Mechanics, Local Union 123, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO.  Administrative Law Judge George Carson II issued his decision on October 12, 2012.  Chairman Pearce and Members Griffin and Block participated.  

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 Paragon Systems, Inc.  (19-CA-086005; 359 NLRB No. 161Yelm, WA, July 2, 2013.

The Board granted the Acting General Counsel’s motion for a default judgment pursuant to the noncompliance provisions of an informal settlement agreement. The Board found that the respondent failed to comply with the terms of the settlement agreement by, among other things, failing to furnish the union with requested information. The Board ordered the respondent to furnish the union with the information requested by the union on July 6, 2012. Charge filed by Security Union of the Northwest.  Chairman Pearce and Members Griffin and Block participated.

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Rock Solid Creations Landscape & Masonry, Inc. d/b/a Rock Solid Creations  (31-CA-066590, et al.; 359 NLRB 160)  Los Osos, CA, July 2, 2013.

The Board granted the Acting General Counsel’s motion for default judgment pursuant to the noncompliance provisions of an informal settlement agreement. The Board found that the respondents violated Section 8(a)(5), (3) and (1) of the Act and ordered the respondents to reinstate the discriminatees with full backpay and benefits, to expunge their personnel records and to post a notice to employees.  The Board also ordered the respondents to bargain with the union with respect to the layoffs and with respect to wages, hours, and other terms and conditions of employment and to embody an understanding reached in a signed agreement.  The Board also stated that to ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, the Board would construe the initial period of the certification as beginning the date the respondents begin to bargain in good faith with the union.  

Charges filed by Laborers Pacific Southwest Regional Organizing Coalition.  Chairman Pearce and Members Griffin and Block participated.

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Lintrac Services, Inc.  (13-CA-091818; 359 NLRB No.153)  Chicago, IL, July 3, 2013.

The Board granted the Acting General Counsel’s motion for default judgment in the absence of an answer to the compliance specification. The Board ordered the Respondent to pay the discriminatees the amounts set forth in the compliance specification, plus interest accrued to the date of payment, minus required tax withholdings.   Chairman Pearce and Members Griffin and Block participated.

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Guide Dogs for the Blind, Inc.  (20-RC-018286; 359 NLRB No. 151)  San Rafael, CA, July 3, 2013.

The Board affirmed the acting regional director’s finding that the petitioned-for unit of canine welfare technicians and instructors was appropriate.  Applying its decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), which issued after the acting regional director’s Decision and Direction of Election, the Board concluded that the employees in the petitioned-for unit were a readily identifiable group who share a community of interest, and that the employer had not met its burden of demonstrating that employees in the other “dog handling” classifications it sought to include shared an overwhelming community of interest with the petitioned-for employees so as to require their inclusion in the unit. 

Petition filed by Office and Professional Employees International Union, Local 29.  Acting Regional Director Timothy W. Peck issued his decision on March 1, 2010.  Chairman Pearce and Members Griffin and Block participated.

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 Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

C.R. England, Inc.  (13-RC-095967)  Chicago, IL, July 5, 2013.  The Board adopted the Regional Director’s overruling of one of the employer’s objections to the election held February 19, 2013.  (The Regional Director had directed a hearing on the employer’s other objection.)  The Board also denied the employer’s request to hold the proceeding in abeyance.  Petitioner – Teamsters, Local 705.  Chairman Pearce and Members Griffin and Block participated.

 C Cases

United States Postal Service  (28-CA-096422)  Albuquerque, NM, July 1, 2013.  The Board denied respondent’s motion to dismiss or for summary judgment.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

Alstate Maintenance, LLC  (29-CA-104000; 29-CB-103994)  Rockville Center, NY, July 3, 2013.  The Board denied Alstate Maintenance’s petitions to revoke subpoenas duces tecum.  Charges filed by Local 660 United Workers of America.  Chairman Pearce and Members Griffin and Block participated.

H&M International Transportation, Inc.  (22-CA-095095)  Jersey City, NJ, July 3, 2013.  Order denying the petition to revoke an investigative subpoena duces tecum filed by H&M International Transportation, Inc., the employer and charged party.  The Board found that the subpoena sought information relevant to the matters under investigation and stated with sufficient particularity the information sought.  The Board further found that the employer had failed to establish any other basis in law to revoke the subpoena, rejecting the employer’s arguments that the subpoena was overly-broad and seeks privileged communications.  The Board also rejected the employer’s argument that the subpoena is unenforceable as a matter of law because the Board lacks a quorum, citing Bloomingdale’s, 359 NLRB No. 113 (2013).  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.  

National Automatic Sprinkler Industry Welfare Fund  (05-CA-097998)  Landover, MD, July 5, 2013.  The Board denied respondent’s motion for partial summary judgment without prejudice to the respondent’s right to renew its deferral arguments to the administrative law judge and raise the deferral issue before the Board on any exceptions that may be filed to the judge’s decision.  Charge filed by Office and Professional Employees International Union, Local 2.  Chairman Pearce and Members Griffin and Block participated.

Le Fort Enterprises, Inc. d/b/a Merry Maids of Boston  (01-CA-096018, 098330)  South Boston, MA, July 5, 2013.  The Board denied the employer’s petition to a revoke subpoena duces tecum.  Charges filed by International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, Local 7, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

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 Appellate Court Decisions

GGNSC Springfield, LLC, Board Case No. 26-CA-72684 (reported at 358 NLRB No. 27) (6th Cir. decided July 2, 2013)

In a published opinion, a divided panel reversed the Board's finding that the employer's registered nurses were not statutory supervisors.  The Court also held that it was not required to review the employer's challenges to the 2012 recess appointments, raised for the first time after briefing was complete, because the challenge was nonjurisdictional.

The employer operates a nursing home in Springfield, Tennessee.  Its registered nurses voted for union representation in November 2011 after the Board decided they were not supervisors, but employees, under the Act.  The employer refused to bargain to test the certification, which the Board found violated Section 8(a)(5) of the Act.  This appeal followed.

Before the Sixth Circuit, the employer contended that the RNs were statutory supervisors outside the Act's protection because they disciplined, assigned, and responsibly directed certified nursing assistants.  After briefing was complete, the employer submitted a letter to the Court citing the D.C. Circuit's opinion in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted, No. 12-1281 (U.S. Jun. 24, 2013), belatedly challenging the January 2012 recess appointments to the Board for the first time.  The employer claimed that the argument's late arrival was of no import, because the challenge went to the Court's power to hear the case.  The Court, however, agreed with the Board that, "[e]rrors regarding the appointments of officers under Article II are 'nonjurisdictional.'"  Thus, the Court held that it was "not compelled to consider" the recess appointment argument, and "did not consider excusing the [employer's] forfeiture in [its] discretion," given its decision for the employer on its non-constitutional labor law challenge.

Turning to those merits, the panel majority held that the RNs' issuance of an "employee memorandum" to document CNA misconduct constituted "discipline" under the Act.  As the majority explained, when faced with CNA misconduct, RNs had the discretion to do nothing, to verbally counsel, or to draft a written memorandum.  The first two options are not disciplinary, but the third, according to the majority, is.  This is because "[r]eceipt of an employee memorandum leads automatically to a written warning, which is a 'step' in the [employer's] system of progressive discipline." Further, even though the RN made no recommendation for actual disciplinary action on the form nor did she know what disciplinary step her memorandum might constitute, "[t]he warnings" were nevertheless disciplinary because they "'lay a foundation' for future adverse employment action."  Thus, because the RNs administered discipline via the employee memoranda, the panel majority found the RNs statutory supervisors, and reversed the Board's unfair labor practice finding without passing on the other challenged statutory indicia.

Judge Merritt dissented, complaining that a finding of supervisory status was inappropriate because the majority could not identify "any instance in the entire history of the company where an RN's write-up against a fellow employee caused any punishment at all by a supervisor or an executive - not even a frown, a warning, a threat to suspend or reduce pay, or any other real disciplinary action."  Rather, Judge Merritt opined, the employer "has drafted a nominal procedure that has never led to anything but an excuse for allowing the company to avoid recognizing and bargaining collectively with the union that its employees voted for as their representative."

The Court's published opinion is available here

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 Administrative Law Judge Decisions

DHS, LLC, d/b/a Affinity Medical Center  (08-CA-090083, et al.; JD-41-13)  Massillon, OH.  Charges filed by National Nurses Organizing Committee (NNOC).  Administrative Law Judge Arthur J. Amchan issued his decision on July 1, 2013.

United Parcel Service, Inc.  (26-CA-072915, et al.; JD(ATL)-05-13)  Nashville, TN.  Charges filed by Teamsters Local Union No. 480 affiliated with International Brotherhood of Teamsters.  Administrative Law Judge Margaret G. Brakesbusch issued her supplemental clarification of decision on July 2, 2013.

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