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Summary of NLRB Decisions for Week of July 30 - August 3, 2012

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

Wellington Industries, Inc. (07-CA-061568, 358 NLRB No. 90) Belleville, MI, July 30, 2012.

The Board adopted the administrative law judge’s findings that the respondent violated the Act by failing to permit Independent Union Local One’s (IULO) chosen representative to assist in grievance processing and by failing to provide the union with relevant information it requested.  In adopting the judge’s finding, the Board found it unnecessary to rely on the judge’s finding that IULO was affiliated with UAW Local 174, the Charging Party.  Instead, the Board found that Local 174’s president was properly designated as IULO’s agent for grievance processing and that IULO requested the disputed information in its own right.

Charge filed by UAW Local 174.  Administrative Law Judge Arthur A. Amchan issued his decision on January 9, 2012.  Chairman Pearce and Members Hayes and Block participated.

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Banner Health System d/b/a Banner Estrella Medical Center (28‑CA‑023438, 358 NLRB No. 93) Phoenix, AR, July 30, 2012.

The Board agreed with the administrative law judge’s finding that the employer issued a coaching to an employee based on insubordination, rather than protected concerted activity, and therefore did not violate the Act.  The Board also agreed with the judge’s finding that the employer did not violate the Act by issuing a negative performance evaluation to the same employee, based on the finding that the evaluation was completed prior to any of the alleged protected concerted activity.

The Board disagreed with the judge and found that the employer unlawfully prohibited employees from discussing ongoing investigations of employee misconduct.  The Board ordered the employer to cease and desist from maintaining and enforcing this prohibition.  Member Hayes dissented to this part of the Board’s decision, arguing that the employer did not maintain a rule prohibiting discussions of ongoing investigations, but merely suggested that the employees not discuss matters under investigation.

Charge filed by an individual.  Administrative Law Judge Jay R. Pollack issued his decision on October 31, 2011.  Members Hayes, Griffin, and Block participated.

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Aim Royal Insulation, Inc. and Jacobson Staffing, L.C. (28‑CA‑022605, et al.; 358 NLRB No. 91) Phoenix, AZ, July 30, 2012.

The Board reversed the administrative law judge and found that Aim Royal Insulation violated the Act by refusing to hire 10 union-affiliated applicants.  In addition, the Board reversed the judge and found that Aim Royal Insulation and Jacobson Staffing, acting as joint employers, violated the Act by refusing to hire three union-affiliated applicants.

Charges filed by International Association of Heat & Frost Insulators & Allied Workers, AFL-CIO, Local No. 73. Administrative Law Judge William G. Kocol issued his decision on May 21, 2010.  Chairman Pearce and Members Griffin and Block participated.

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Latino Express, Inc. (13-CA-046528, et al., 358 NLRB No. 94) Chicago, IL, July 31, 2012.

The Board adopted the administrative law judge’s finding that the respondent violated Section 8(a)(1) of the Act in six different ways.  The Board also adopted the judge’s finding that the respondent violated Section 8(a)(3) and (1) of the Act by discharging two employees because they supported the union.  The Board also found that the respondent interfered with employee rights in violation of Section 8(a)(1) of the Act by granting a wage increase during a union organizing drive.  The Board did not adopt the judge’s finding that the respondent violated Section 8(a)(1) of the Act by unlawfully threatening that it would be futile to select the union as the employees’ bargaining representative.  Finally, the Board invited all interested parties to file briefs in this case regarding the questions of whether, in connection with an award of backpay, the Board should routinely require a respondent to: (1) submit the appropriate documentation to the Social Security Administration so that when backpay is paid, it will be allocated to the appropriate calendar quarters, and/or (2) reimburse a discriminatee for any excess Federal and State income taxes the discriminatee may owe in receiving a lump-sum backpay award covering more than 1 year.

Charges filed by individuals and the International Brotherhood of Teamsters, Local 777.  Administrative Law Judge Michael A. Rosas issued his decision on July 12, 2011.  Members Hayes, Griffin, and Block participated.

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Warren Unilube, Inc. (26-CA-023910, 358 NLRB No. 92) West Memphis, AR, July 31, 2012.

The Board adopted the administrative law judge’s finding that the respondent violated the Act by unilaterally modifying its cell phone and radio usage (CR) policy without bargaining with the union, just days after the union had won a representation election.  The Board noted that before the respondent promulgated its no-radio usage rule, it had previously had no radio usage policy at all, and that the respondent had added an unprecedented emphasis on the prospect of discipline for nonproduction employees who violated the new policy.  The Board also found that the new policy allowed nonproduction employees to use cell phones only while at lunch or during break times, whereas formerly they were prohibited from using cell phones only while operating equipment.  The Board found that these modifications constituted a material, substantial, and significant change from the old policy.  The Board rejected the respondent’s contention that the changes were lawful because, at the time they were made, the union had not yet requested bargaining.  The Board also found no merit in the respondent’s argument that it would have been unlawful to bargain over the changes because the “general duty clause” of the Occupational Safety and Health Act, 29 U.S.C. Sec. 654(a)(1), requires it to maintain a workplace free of serious hazards.

Member Hayes expressed no opinion as to whether the implementation of a no-radio usage policy or a broader prohibition of cell phone usage, standing alone, would constitute a material, substantial, and significant change; he relied instead on precedent holding that the threat of discipline for a breach of a unilaterally implemented policy may establish such a change.  Member Hayes disagreed with his colleagues to the extent they suggested that stricter enforcement of existing work rules would necessarily be a material, substantial, and significant change.  Finally, Member Hayes expressed his view that in certain circumstances an employer’s need to comply immediately with the OSHA “general duty clause” should excuse it from bargaining before taking unilateral action, but found that the respondent had failed to prove the existence of such circumstances.

Charge filed by Teamsters, Local 667.  Administrative Law Judge Robert A. Ringler issued his decision on September 30, 2011.  Members Hayes, Griffin, and Block participated.

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Salem Hospital Corporation a/k/a/ Memorial Hospital of Salem County (The) (04‑CA‑064458, 358 NLRB No. 95) Salem, NJ, July 31, 2012.

The Board adopted the administrative law judge’s finding that the Respondent failed to provide the union with requested information and adopted without comment the judge’s rejection of the respondent’s defense that the Board’s decision in Specialty Healthcare & Rehabilitation of Mobile, 357 NLRB No. 83 (2011) rendered the underlying certification invalid.

Charge filed by Health Professionals and Allied Employees (HPAE).  Administrative Law Judge Robert A. Giannasi issued his decision on April 17, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Strategic Resources, Inc. (19-RC-082047) JBLM, WA, July 30, 2012.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – International Association of Machinists & Aerospace Workers, District Lodge W24, AFL‑CIO.  Chairman Pearce and Members Griffin and Block participated.

Waste Management Recycling of New Jersey, LLC (22-RD-001568) Newark, NJ, July 31, 2012.  Decision and certification of results of election.  Petitioner – an individual and International Brotherhood of Teamsters, Local 863.  Chairman Pearce and Members Griffin and Block participated.

Duquesne University of the Holy Spirit (06-RC-080933) Pittsburgh, PA, August 1, 2012.  Order granting the Association of Catholic Colleges and Universities’ request for special permission to file brief amicus curiae.  Petitioner -- United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial Workers, International Union (USW), AFL‑CIO.

C Cases

Sysco Central California, Inc. (32-RC-066049) Modesto, CA, July 30, 2012.  Decision and order adopting the Acting Regional Director’s findings and recommendations and remanding the proceeding to the Regional Director for further appropriate action.  Charge filed by International Brotherhood of Teamsters, Locals 386 and 853.

JC Electric LLC and its alter ego JC Electrical Enterprises, LLC (09‑CA‑076253) Vanceburg, KY, July 31, 2012.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.  Charge filed by International Brotherhood of Electrical Workers, Local 575.

Remington Lodging  Hospitality, LLC, d/b/a Sheraton Anchorage (The) (19‑CA‑032148, et al.) Anchorage, AK, August 1, 2012.  Order denying the respondent’s motion for leave to supplement the record and the respondent’s failure to state how any evidence in the 10(j) record warranted an outcome different from that reached by the administrative law judge.  Charges filed by UNITE HERE! Local 878.

United States Postal Service (07-CA-071165) Lansing, MI, August 2, 2012.  Order adopting the administrative law judge’s findings and conclusions and ordering the respondent to take the recommended action. Charge filed by Branch 122, National Association of Letter Carriers, AFL‑CIO.

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Appellate Court Decisions

ADT Security Services, Inc., Board Case No. 7-CA-51288 (reported at 355 NLRB No. 223) (6th Cir. decided August 3, 2012)

In a published opinion the Court enforced the Board’s order, agreeing that the Board properly determined that a historical unit remained proper after a merger and appropriately defined the bargaining unit.

Since 1979, the union represented service employees at ADT’s Kalamazoo, Michigan location. In 2008, however, ADT announced the closure of the Kalamazoo office and its consolidation with its Wyoming, Michigan location, which was not unionized.  ADT withdrew recognition from the union, informed the employees that they were now subject to employment terms less favorable than those in the collective-bargaining agreement, and reassigned the Kalamazoo employees (who mostly worked out of their homes) to the Wyoming facility.  The Kalamazoo employees, however, continued to perform the same jobs under most of the same conditions, and service the same territory, as before the switch.

The Court agreed with the Board that the historical unit remained appropriate for bargaining even after the switch, applying the Board’s community of interest test with the note that “compelling circumstances” must be shown to overcome a lengthy bargaining history.  While the Court recognized that several factors in the traditional community of interest test favored merging the two shops, it observed that the Wyoming office did not fully absorb the Kalamazoo technicians and that they continued to work in their own geographical area under terms different than the Wyoming service employees.  In light of the strong bargaining history and organization among the Kalamazoo employees, the Court held that the small changes favoring consolidation “did not amount to ‘compelling circumstances’ that would overcome the twenty-nine year bargaining history between the union and ADT and the fact that the Kalamazoo servicemen worked in their own separate historical unit that maintained its integrity and remained distinct from the Wyoming servicemen.” 

Lastly, the Court enforced the Board’s slight modification of the unit description to reflect that it included “servicemen regularly assigned to work in the Kalamazoo service territory” instead of “servicemen employed by [ADT] at its Kalamazoo . . . facility.”  As the Court explained, “[t]he Board’s modification of the bargaining-unit description merely reflects the reality that those employees are no longer employed at the Kalamazoo facility.”

The Court’s opinion is available here

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Decisions of Administrative Law Judges

Instituto Socio Economico Comunitario, Inc. (24-CA-011762, et al.; JD(ATL)-18-12) Hato Rey, PR, Toa Baja, PR, Comerio, PR, Lomerio, PR, Caguas, PR, Humacao, PR, Ponce, PR, and Mayaguez, PR.  Charge filed by Unidad Laboral de Enfermeras (OS) Y Empleados de La Salud.  Administrative Law Judge William Nelson Cates issued his decision on August 1, 2012.

Healthbridge Management, LLC, Care Realty, LLC aka Care One; 107 Osborne Street Operating Company II, LLC, d/b/a Danbury HCC; 710 Long Ridge Road Operating Company II, LLC d/b/a Long Ridge of Stamford; 240 Church Street Operating Company II, LLC d/b/a Newington Health Care Center; 1 Burr Road Operating Company II, LLC d/b/a Westport Health Care Center; 341 Jordan Lane Operating Company II, LLC d/b/a Wethersfield Health Care Center (34‑CA‑12715, et al.; JD(NY)‑23‑12) Wethersfield, CT.  Charges filed by New England Health Care Employees Union, District 1199, SEIU, AFL-CIO.  Administrative Law Judge Steven Fish issued his decision on August 1, 2012.

Central Peninsula Hospital, Inc. (19-CA-032835. et al.; JD(SF)‑37‑12) Soldotna, AK.  Charges filed by an individual.  Administrative Law Judge William G. Kocol issued his decision on August 2, 2012.

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