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Summary of NLRB Decisions for the Week of July 11-15, 2011

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 Decisions

Jen Holdings, Inc. d/b/a Mike Quinn Pumping Company also known as Mike Quinn Concrete Pumping Co. and Quinn Concrete Pumping, Inc. (28-CA-23364; 357 NLRB No. 11) Las Vegas, NV, July 11, 2011.

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.

Charge filed by International Union of Operating Engineers, Local 12. Members Becker, Pearce, and Hayes participated.

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Capital Iron Works Company (17-CA-24499; 357 NLRB No. 12) Topeka, KS, July 11, 2011.

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the compliance specification, and ordered the Respondent to remedy its unfair labor practices by paying certain employees backpay, properly reimbursing them for safety glasses, and making 401(k) contributions on their behalf, as required by the collective-bargaining agreement.

Charge filed by Boilermakers Local Lodge 83, affiliated with International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL–CIO. Members Becker, Pearce, and Hayes participated.

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UNITE HERE! (Boyd Tunica, Inc., d/b/a Sam’s Town Hotel and Gambling Hall Tunica) (26-CB-05146; 357 NLRB No. 14) Tunica, MS, July 13, 2011.

The Board adopted the administrative law judge’s decision finding that the Respondent Union did not violate Section 8(b)(1)(A) by failing to provide correct information about resigning membership and dues revocation to the Charging Party.The Board dismissed the complaint. 

Charges filed by an individual.  Administrative Law Judge Keltner W. Locke issued his decision on December 28, 2010.  Members Becker, Pearce, and Hayes participated.

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PACCAR, Inc., d/b/a Peterbuilt Motors Company (26-CA-23225; 357 NLRB No. 13) Madison, TN, July 15, 2011.

The Board found that the employer violated Section 8(5) and (1) by failing and refusing to provide the union with requested information concerning labor costs at the employer’s other facilities.  The Board agreed with the administrative law judge that the requested information was relevant and that the employer made it so by its own assertions at the bargaining table.  Despite the violation, the Board found that the failure to provide the information did not render the ongoing lockout unlawful because there is no evidence in the record demonstrating that the withholding of the requested information materially affected the progress of bargaining. 

Member Hayes dissented and would have found that the employer’s comments about high operating costs did not trigger a statutory obligation to provide information about comparative labor costs at the employer’s other facilities.  Member Hayes agrees with the majority that, assuming the employer’s refusal was unlawful, this conduct did not materially affect the parties’ negotiations and that the ensuing lockout was not unlawful.

Charge was filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and UAW, Local 1832.  Administrative Law Judge Keltner W. Locke issued his decision on October 28, 2010. Chairman Liebman and Members Becker and Hayes participated.

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Solutia, Inc. (01-CA-45447; 357 NLRB No. 15) Springfield, MA, July 15, 2011.

The Board adopted the administrative law judge’s recommended findings in all respects.  First, the Board adopted the judge’s finding that the Respondent’s transfer of work from the west side Birchem Bend Plant to the east side Saflex Control Lab was not an unlawful unit modification and therefore did not violate Section 8(d) of the Act.  The Board also adopted the judge’s finding that the work transfer did not violate the consolidation language in the recognition clause contained in the collective-bargaining agreement between the Respondent and Local 414C, and therefore did not constitute an unlawful mid-term contract modification.  Finally, the Board further adopted the judge’s recommended finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide the Union with reasonable notice and opportunity to bargain over the consolidation/transfer decision and its effects.  With regard to the remedy, the Board’s decision adopted the judge’s recommended reinstatement remedy for those employees who opted to retire.  As articulated by the judge, the standard to be applied in the compliance proceeding is whether the employees opted to retire “as a result” of the Respondent’s unlawful action. 

Charge filed by the United Food & Commercial Workers Union Local 414c/International Chemical Workers Union Council, a/w United Food and Commercial Workers International Union, CLC.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on July 15, 2010.  Chairman Liebman and Members Becker and Pearce participated.

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Warren Unilube Company (26-CA-23999; 357 NLRB No. 9) West Memphis, AR, July 15, 2011.

Test of Certification: The Board granted the Acting General Counsel’s motion for summary judgment in this unfair labor practice case on the ground that the respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the union was certified as the bargaining representative.  The Board specifically rejected the respondent’s argument that the Board should allow the relitigation of the representation issues here because the union’s majority did not result from a fair and free election, finding no basis for departing from its longstanding rule barring the relitigation of representation case issues.

Charge filed by Teamsters, Local 667. Chairman Liebman and Members Becker and Hayes participated.

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Decisions of Administrative Law Judges

General Die Casters, Inc. (08-CA-39211 et al.; JD-39-11) Twinsburg and Peninsula, OH. Charges filed by Teamsters Local 24 a/w International Brotherhood of Teamsters. Administrative Law Judge Mark Carissimi issued his decision on July 11, 2011. 

Neilmed Products, Inc. (20-CA-35363; JD(SF)-20-11) Santa Rosa, CA. 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.

Carnegie Linen Services, Inc. (2-CA-39560 et al.; JD(NY)-21-22) Bronx, NY. Charges filed by Laundry Dry Cleaning & Allied Workers Joint Board, Workers United, a/w Service Employees International Union and International Longshoremen’s Association, Union Local 1964, AFL-CIO. Administrative Law Judge Steven Davis issued his decision on July 11, 2011.

K-VA-T Food Stores, Inc. (09-CA-46125 et al.; JD-38-11) Louisa, KY. Charges filed by Retail, Wholesale & Department Store Union, UFCW, CLC. Administrative Law Judge Paul Bogas issued his decision on July 11, 2011.

Latino Express, Inc. (13-CA-46528 et al.; JD-40-11) Chicago, IL. Charges filed by individuals.  Administrative Law Judge Michael A. Rosas issued his decision on July 12, 2011.

NAACP Houston Branch (16-CA-27783; JD(ATL)-20-11) Houston, TX. Charge filed by an individual. Administrative Law Judge George Carson II issued his decision on July 15, 2011.

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Appellate Court Decisions

Diversified Enterprise, Inc., Case No. 9-CA-43110 (355 NLRB No. 8) (4th Cir., decided July 13, 2011).
 
In a short, unpublished per curiam order, the Fourth Circuit granted the Board's application for enforcement in the above-captioned case.  The Board had found that the employer unlawfully demoted a foreman in retaliation for his activities as a volunteer organizer for the union.  In so finding, the Board rejected the Company's argument that the foreman was a statutory supervisor, concluding that the foreman did not use independent judgment in assigning work to employees, nor did he responsibly direct them.  Moreover, the Board's order concluded that the Company unlawfully coerced employees' statutory rights by threatening physical harm, demotion, termination, loss of pay, and undesirable shift changes if employees selected union representation.  The Fourth Circuit enforced the Board's order, concluding that "substantial evidence supports the Board's decision."
 
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Sheehy Enterprizes, Inc., No. 25-CA-30583 (published at 355 NLRB No. 83) (7th Cir., decided July 14, 2011).
 
In an unpublished per curiam order, the Seventh Circuit enforced, for a second time, this former two-member case that it had previously decided prior to New Process.  As the Court stated: "There is no need to give the appeal a second look.  We have already indicated that we were prepared to deny an identical petition on the merits and we complete the task here without hesitation (and without oral argument . . .)." 

In its original decision, Sheehy Enterprizes, Inc. v. NLRB, 602 F.3d 839 (7th Cir. 2010), the Court concluded that substantial evidence supported the Board's finding that the Company unilaterally repudiated an 8(f) collective-bargaining agreement with the Indiana District Council of the Laborers' International Union ("the 2004 CBA") during its April 1, 2004-March 31, 2009 term.  In concluding that “substantial and uncontroverted evidence in the record supports the [Board's] finding that the Company violated the Act by repudiating the 2004 CBA,” the Court relied on the Company's admissions that its president “signed the 2004 CBA on May 21, 2004, on behalf of the Company, without reading it,” and then subsequently “denied [to the Union] that it was bound by the CBA."  The Court further agreed with the Board that the Company failed to timely raise its statute of limitations defense and that the Union filed its unfair labor practice charge within three months of learning of the Company's repudiation.  Lastly, the Court, applying the waiver provisions of Section 10(e) of the Act, declined to consider the Company's argument that the Board should have deferred the dispute under Collyer because the Company "failed to make this non-jurisdictional argument to the Board."
 
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Regency Heritage Nursing & Rehabilitation Center, No. 22-CA-27992 (355 NLRB No. 103) (3d Cir., decided July 15, 2011).

In an unpublished opinion that issued on Friday, July 15, the Third Circuit enforced the above-captioned case in full, agreeing that the employer unlawfully refused to bargain with the union's chosen representative.  The Court rejected the employer's argument that two alleged instances of the representative's misconduct made good-faith bargaining impossible.  Instead, the Court found substantial evidence supporting the Board's conclusions that, as to the first alleged incident, the employer bargained with the representative for two years afterwards, which "belie[d] [the employer's] claim that [the] incident made bargaining with [the representative] impossible," and, as to the second alleged misdeed, it never occurred.  The Court also agreed that the Board did not abuse its discretion in declining to defer the refusal-to-bargain claim to arbitration because "this dispute [was] not covered by any arbitration agreement." 

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Metro Santurce, Inc. d/b/a Hospital Metro Pavia Santurce (24-RD-00528) San Juan, PR, July 11, 2011. Order granting special appeal.

Fairlane Senior Care and Rehab Center (07-UC-00643) Detroit, MI, July 13, 2011. Order denying request for review.

Iridium Services Corp. (29-RC-12021) Douglaston, NY, July 13, 2011. Order denying request for review.

Saint Xavier University (13-RC-22025) Chicago, IL, July 13, 2011. Order granting request for review.

C Cases

Little River Band of Ottawa Indians Tribal Government (07-CA-51156) Manistee, MI, July 11, 2011. Order granting motion to file amicus briefs.

The TM Group, Inc. (07-CA-52730) Farmington Hills, MI, July 11, 2011. Order granting the Acting General Counsel’s Motion to Strike Portions of pages 10, 11 and 12 of the Respondent’s brief in support of exceptions.

Random Acquisitions LLC (07-CA-52473) Battle Creek, MI, July 12, 2011. Order denying Respondent’s motion for leave to amend answer to conform to the evidence.

Tube City IMS, LLC (04-CA-37596) Claymont, DE, July 13, 2011. Order adopting Respondent to take action.

Biosource Landscaping Services, LLC (09-CA-46347) Xenia, OH, July 13, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before July 27, 2011.

Consumer Product Services LLC (13-CA-46622) Deer Park, NY, July 13, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before July 27, 2011.

J.E.W. Design & Construction, Inc. (15-CA-19675) New Orleans, LA, July 13, 2011. Revised notice to show cause. Briefs due on or before July 27, 2011.

Boilermakers Local 502 (APCompower Inc.) (19-CB-10116) Centralia, WA, July 14, 2011. Order advising all subpoenaed information has been provided, motion to quash is moot and matter is closed.

Enclosure Suppliers, Inc. (09-CA-46169) Cincinnati, OH, July 14, 2011. Order granting appeal, that the agreement/consent order is set aside, and matter is remanded to the judge for further action consistent with this Order.

Excel Rehabilitation and Nursing Center (12-CA-25117 et al.) Tampa, FL, July 15, 2011. Order adopting Respondent to take action.

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