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Summary of NLRB Decisions for the Week of July 18-22, 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

Go Ahead North America LLC(14-RD-01946; 357 NLRB No. 18) St. Louis, MO, July 18, 2011.

The Board having considered objections to an election held December 10, 2010, and the hearing officer’s report recommending disposition of them, and having reviewed the record in light of the exceptions and briefs, found that the election should be set aside and a new election held because the Union’s offer of a back-dues waiver was an objectionable grant of a financial benefit.  Petitioner – Hortense Moss.  Chairman Liebman and Members Becker and Hayes participated.

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Supershuttle International Denver, Inc.(27-RC-08582; 357 NLRB No. 19) Denver, CO, July 18, 2011.

The Board reversed the Regional Director’s finding that the Communications Workers of America, Local 7777 (Union) is disqualified from representing the Employer’s employees because of a conflict of interest.  Specifically, the Board found that the Employer did not meet its heavy burden of showing that the Union’s relationship with the Union Taxi Cooperative (UTC) poses a clear and present danger of interfering with its collective bargaining with the Employer.  The Board noted that even assuming the UTC taxi drivers were direct competitors of the Employer, it did not believe that this fact would disqualify the Union from representing the Employer’s employees.  “After all, unions commonly represent employees of multiple employers in the same industry, often in the same competitive market.” The Board’s finding was not altered by the fact that Union did not represent the UTC taxi drivers in traditional collective bargaining.  The Board noted that unions often advocate on behalf of their members in forums other than collective bargaining.  Such advocacy does not disqualify a union from representing employees of two employers in the same market.  

Further, the Board disagreed with the Regional Director’s finding that UTC is a direct competitor of the Employer.  The Board found no evidence to support the Regional Director’s finding that UTC and SuperShuttle compete for a fixed number of licenses, or that the nature of the industry is such that the Union’s intervention on behalf of one company results in a loss of business for another.  Finally, the Board found that the Regional Director erred in finding that the Union’s intervention on behalf of UTC members could result in member drivers gaining advantages over the Employer’s employees in curbside waiting at the airport or other prime locations to park and wait for passengers in the downtown area. Accordingly, for the reasons stated above, the petition was reinstated, and the case remanded to the Regional director for further processing.

Chairman Liebman, and Members Becker and Pearce participated.

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Alden Leeds, Inc.(22-CA-29188; 357 NLRB No. 20) South Kearny, NJ, July 19, 2011.

The Board adopted the judge’s findings that the Respondent’s lockout of employees violated Section 8(a)(3) of the Act, and that the lockout’s initial illegality was not cured when the Respondent provided a complete contract proposal to the Union. The Respondent did not except to the judge’s failure to find that it had carried its burden of showing that its failure to restore the status quo ante had no adverse impact on subsequent collective bargaining. Under the circumstances, the Board found that further litigation of the matter at compliance was unwarranted. Member Hayes observed that the Respondent’s contract proposal provided the Union adequate notice of its bargaining position on all issues. He noted that an employer can avoid further liability for an unlawful lockout if it could show at compliance that a failure to restore the status quo ante did not adversely affect subsequent bargaining, that the Respondent therefore was not obligated to raise the matter at this stage of the proceeding, and that it should be able to litigate the matter at compliance, despite the absence of a specific exception, because the matter related to back pay. In the absence of exceptions, the Board adopted the judge’s dismissal of allegations that the Respondent violated Section 8(a)(1) by threatening to relocate operations if the Union did not submit to its bargaining demands, violated Section 8(a)(5) and (1) by refusing to furnish financial information, and that its lockout also violated Section 8(a)(5).

Charges filed by United Food and Commercial Workers Union, Local 1245.  Administrative Law Judge Steven Fish issued his decision on August 30, 2010.  Members Becker, Pearce, and Hayes participated.

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SFO Good-Nite Inn, LLC(20-CA-32754; 357 NLRB No. 16) San Francisco, CA, July 19, 2011.

The Board adopted the judge’s finding that Respondent violated Section 8(a)(5) and (1) by withdrawing recognition of its employees’ union after committing a number of unfair labor practices directly related to encouraging its employees’ decertification efforts.  The Board majority explained that, under the circumstances of this case where the employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify withdrawal of recognition of its employees’ union, the case was properly controlled by a conclusive presumption of taint set forth in Hearst Corp., 281 NLRB 764 (1986), enfd. mem. 837 F.3rd 1088 (5th Cir. 1988). Writing separately, Member Hayes agreed that Hearst Corp. was the appropriate precedent to apply to the facts of this case, but argued that Hearst’s presumption of taint should be rebuttable.

The charge was filed by UNITE HERE! Local 2.  Administrative Law Judge Jay R. Pollack issued his decision on September 28, 2006.  Following the Supreme Court’s June 17, 2010 decision in New Process Steel, L.P. v. N.L.R.B., 130 S. Ct. 2635, the Board’s March 20, 2008 decision (Members Liebman and Schaumber participating) was remanded to the Board by the United States Court of Appeals for the District of Columbia Circuit, where Respondent’s appeal of the Board’s decision was pending.  Chairman Liebman and Members Pearce and Hayes participated. 

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DTG Operations, Inc. d/b/a Dollar Rent A Car and Thrifty Car Rental(28-CA-23059; 357 NLRB No. 6) Las Vegas, NV, July 20, 2011.

The Board found that the employer violated the Act by interrogating an employee about the union, prohibiting two employees from talking about the union, and threatening an employee with discharge for discussing the Union.  However, the Board also found that the employer did not violate the Act when it discharged three employees. 

Chairman Liebman and Members Becker and Hayes participated.

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MasTec Advanced Technologies, a division of MasTec, Inc.  (12-CA-24979 et al.; 357 NLRB No. 17) Orlando, FL, July 21, 2011.

The Board found that the employer violated Section 8(a)(1) by terminating employees because of statements the employees made about their employer on a news broadcast.  The Board found that the employees’ statements were neither maliciously untrue, nor so disloyal or reckless as to lose the Act’s protection under NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953). Member Becker concurred with the result, stating that because the employees’ speech was clearly concerted activity for mutual aid and protection, it was protected unless it was uttered with actual malice. 

Charges filed by Joseph Guest.  Chairman Liebman and Members Becker and Hayes participated in the decision.

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International Association of Machinists and Aerospace Workers, District Lodge 160, Local Lodge 289 (SSA Marine, Inc.)(19-CD-000502; 357 NLRB No. 24) Seattle, WA, July 22, 2011.

In this jurisdictional dispute, the Board awarded the work to employees represented by the International Longshore and Warehouse Union rather than employees represented by the International Association of Machinists and Aerospace Workers District Lodge 160, Local Lodge 289.

Chairman Liebman and Members Becker and Pearce participated.

 

Decisions of Administrative Law Judges

Kephart Trucking Company, Inc. (22-CA-29531 et al.; JD(NY)-23-11) Delaware and Kearney, NJ. Charge filed by Teamsters Local No. 125, IBT. Administrative Law Judge Lauren Esposito issued her decision on July 18, 2011.

IAP World Services, Inc. (31-CA-29505; JD(SF)-23-11) Fort Irwin, CA. Charge filed by Teamsters, Chauffeurs, Warehousemen, Industrial and Allied Workers of America, Local 116. Administrative Law Judge William G. Kocol issued his decision on July 19, 2011.

Praxair Distribution, Inc. (28-CA-23266; JD(SF)-26-11) Phoenix, AZ. Charge filed by an individual. Administrative Law Judge William L. Schmidt issued his decision on July 19, 2011.

DHL Express, Inc. (09-CA-46180; JD-41-11) Erlanger, KY. Charge filed by American Postal Workers Union, AFL-CIO. Administrative Law Judge Bruce D. Rosenstein issued his decision on July 21, 2011.

Quality Health Services of P.R., Inc. d/b/a Hospital San Cristorbal (24-CA-11630; JD-36-11) Ponce, PR. Charge filed by Unidad Laboral De Enfermeras (OS) Y Empleados De La Salud. Administrative Law Judge George Alemán issued his decision on July 21, 2011.

Lederach Electric, Inc. (04-CA-37725; JD-37-11) Lederach, PA. Charge filed by International Brotherhood of Electrical Workers, Local 380. Administrative Law Judge Robert A. Giannasi issued his decision on July 21, 2011.

Marriott International, Inc., d/b/a J.W. Marriott Los Angeles at L.A. Live (21-CA-39556; JD(SF)-24-11) Los Angeles, CA. Charge filed by UNITE HERE! Local 11. Administrative Law Judge Clifford H. Anderson issued his decision on July 22, 2011.

 

Appellate Court Decisions

PDK Investments, Inc., Case 16-CA-26292 (355 NLRB No. 115) (5th Cir., decided July 21, 2011)

 In an unpublished opinion, the Fifth Circuit enforced the Board's order in full, holding that the Company unlawfully refused to provide information to the Union about a possible non-union alter ego.  The Court agreed that the Union contemporaneously explained the relevance of the request, and properly relied on objective, although hearsay, evidence to do so, given the Supreme Court's "liberal, discovery-type standard" for justifying information requests.  The Court also found that the 79 questions the Union asked the Company to answer bore a logical relationship to the legitimate purpose of its information request.  In so finding, the Court deferred to the Board's experience, explaining that "the same seventy-nine questions were upheld previously by the Board in alter ego/single employer contexts." 

 

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

American Healthcare, LLC d/b/a Heritage Hall-Big Stone Gap (11-RD-00731) July 18, 2011. Order denying request for review.

C Cases

Hanson Aggregates BMC, Inc. (04-CA-34678 et al.) July 18, 2011. Decision and order pursuant to a settlement stipulation. 

Daycon Products Company, Inc. (05-CA-35687 et al.) July 18, 2011. Order denying motion.

D.R. Horton, Inc. (12-CA-25764) July 18, 2011. Order granting extension of time to file amicus briefs on or before July 27, 2011. Responsive briefs due on or before August 10, 2011.

Spartan Aviation Industries, Inc. d/b/a Spartan College of Aeronautics and Technology (17-CA-24965) July 21, 2011. Order adopting and dismissing complaint.

U.S. Foodservice, Inc. (12-CA-26791) July 21, 2011. Order adopting Respondent to take action.

Insulation Maintenance & Contracting, LLC (28-CA-23198 et al.) July 21, 2011. Revised notice to show cause. Briefs due on or before August 4, 2011.

Presidential Maintenance, LLC (05-CA-36428) July 21, 2011. Revised notice to show cause. Briefs due on or before August 4, 2011.

Anthony’s Painting, LLC (14-CA-30082) July 21, 2011. Second revised notice to show cause. Briefs due on or before August 4, 2011.

Local 687, Michigan Regional Council of Carpenters (Convention & Show Services, Inc.) (07-CB-15293) July 21, 2011. Order denying Charging Party’s request to reject the informal settlement agreement between the Acting General Counsel and the Respondent.

 

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