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Summary of NLRB Decisions for Week of June 24-28, 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

PCMC/Pacific Crane Maintenance Co., Inc.  (32-CA-021925 et al; 359 NLRB No. 136) Oakland, CA/Tacoma, WA, June 24, 2013. 

The Board reversed the administrative law judge and found that Respondent Pacific Crane Maintenance Company (PCMC) and Respondent Pacific Marine Maintenance Company (PMMC), whom the parties stipulated at the hearing constituted a single employer (together, the Employer), violated Section 8(a)(5) of the Act as alleged in the complaint.  Unhappy with the high cost of its contract with PMMC, Maersk, an independent shipping company, put the work PMMC had been performing for it up for bid and then awarded the work to PCMC over PMMC.  On the day that the Maersk-PMMC contract terminated, the Employer transferred the bargaining unit work from PMMC, whose bargaining unit employees were represented by the Machinists, to PCMC, whose bargaining unit employees were represented by the ILWU, withdrew recognition from the Machinists, and laid off the PMMC bargaining unit employees.  The next day, the Employer rehired a majority of the Machinists-represented employees as “new” PCMC employees, included them in the ILWU bargaining unit, and applied the terms of the ILWU Agreement to them.  The complaint alleged that the Employer violated Section 8(a)(5) by withdrawing recognition from the Machinists and by taking these actions without notifying and offering to bargain over them with the Machinists.  

In finding the violations, the Board relied on the parties’ stipulation -- that PMMC and PCMC together constituted a single enterprise -- to find that Board and court precedent “dictates that the Respondent Employer be held responsible to bargain with the Machinists regardless of which of its corporate manifestations nominally employed the bargaining unit employees.”  Accordingly, the Employer “could not escape its bargaining obligation by the simple device of laying off the Machinists-represented employees from PMMC on March 30 and then rehiring them as ‘new’ employees of PCMC on March 31, given that PMMC and PCMC were, for labor law purposes, the same entity.”  Rather, before effecting the transfer of the unit work and unit employees from PMMC to PCMC, the Employer “was first obligated to bargain (to agreement or impasse) with the Machinists about any changes in the unit employees’ terms and conditions of employment, including the layoff of the unit employees from PMMC, whether they would be reemployed by PCMC, and what their initial terms and conditions would be upon reemployment.”  In finding the violations, the Board also found that the Employer’s own labor costs, as well as Maersk’s, were at issue, and that the historical Machinists-represented bargaining unit retained its separate identity after the transfer.  The Board further found that the Employer violated Section 8(a)(2) and that the ILWU violated Section 8(b)(1)(A) and (2). 

Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 190, Local Lodge 1546, and District Lodge 160.  Administrative Law Judge Clifford H. Anderson issued his decision on February 12, 2009.  Chairman Pearce and Members Griffin and Block participated.

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Gaylord Hospital  (34-CA-013008, 013079; 359 NLRB No. 143) Wallingford, CT, June 26, 2013.

The Board adopted the administrative law judge’s findings the respondent violated Section 8(a)(1) by issuing a written warning to an employee, but did not violate Section 8(a)(1) by suspending and discharging her.  No exceptions were filed to the judge’s finding that the respondent violated Sec. 8(a)(1) by prohibiting the employee from discussing terms and conditions of employment.

Charge filed by an individual.  Administrative Law Judge Lauren Esposito issued her decision on September 6, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Bud Antle, Inc.  (32-CA-078166; 359 NLRB No. 140) Oxnard, Huron, Salinas Valley, and Imperial Valley, CA; Yuma, AZ, June 26, 2013.

The Board adopted the administrative law judge’s finding that the respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish information requested by the charging party union regarding subcontracting.  The Board affirmed the administrative law judge’s order that the notices be mailed, because the posting alone would fail to adequately communicate the notice to employees.  Further, the Board granted the charging party union’s request that the notice be read to employees at the reading of the seniority list at each harvesting location, due to mobile nature of the workforce and the fact that employees must gather at various far-flung locations depending on the season.

Charge filed by Teamsters Local Union No. 890, International Brotherhood of Teamsters.  Administrative Law Judge Mary Miller Cracraft issued her decision on January 16, 2013.  Chairman Pearce and Members Griffin and Block participated.

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 Mrs. Green’s Natural Market d/b/a Fresh & Green’s of Washington, D.C., LLC  (5-CA-065595; 359 NLRB No. 145) Washington, D.C., June 28, 2013.

The Board affirmed the judge’s finding that the respondent violated Section 8(a)(3) of the Act by discharging Maria Yliquin, but reversed the judge and found that the respondent also violated Section 8(a)(3) by discharging Esam Amireh.

Contrary to the judge, the Board found that Amireh engaged in protected union activity when he engaged a union representative to assist him in pursuing a scheduling complaint with management.  Also contrary to the judge, the Board found that circumstantial evidence supported the inference that the respondent bore animus toward Emireh’s protected activity.  Finally, the Board found that the reasons given for Amireh’s discharge were pretextual.

 Charge filed on September 28, 2011, by United Food & Commercial Workers, Local 400.  Administrative Law Judge Joel P. Biblowitz issued his decision on May 8, 2012.  Chairman Pearce, Member Griffin, and Member Block participated.

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Pennsylvania American Water Company  (06-CA-037197, et al.; 359 NLRB No. 142), Pittsburgh, PA, June 28, 2013.

The Board found that the respondent violated Section 8(a)(1) by threatening employees in two bargaining units with discipline for their refusal to cross union picket lines at the respondent’s facilities.  The picket lines were manned by employees from other bargaining units employed by the respondent and separately represented by the same union.  The Board agreed that the provisions of the collective-bargaining agreements applicable to the two bargaining units, as well as the extrinsic evidence of practice under the agreements, established the parties’ intention to permit such sympathy strikes.  The Board also found that the respondent violated Section 8(a)(1) by removing a letter from the union to the respondent that the union posted on bulletin boards in the respondent’s facilities.  By contractual agreement and past practice, the union had the right to post materials on these bulletin boards.  The Board agreed that the union’s letter merely disputed the respondent’s interpretation of its collective-bargaining agreements with the union, and it therefore did not lose the protection of the Act.

Charge filed by Utility Workers Union of America, System Local No. 537, AFL-CIO.  Administrative Law Judge David I. Goldman issued his decision on May 17, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Six Star Janitorial & Carpet Services, Inc. d/b/a Six Star Janitorial  (28-CA-023491, et al., 359 NLRB No. 146), Las Vegas, NV, June 28, 2013.

The Board adopted the administrative law judge’s finding that (a) the Board had jurisdiction over Respondent Floppy Mop, and (b) the respondents violated Section 8(a)(5) and (1) of the Act by failing and refusing to provide the union with requested information regarding their payroll, trust fund contributions, and job performed by unit employees.  In adopting the judge’s finding that it had jurisdiction, the Board noted that the 1-year period specified by the Acting General Counsel was appropriate in this case and the Board does not rely on any suggestion from the judge that Valentine Painting & Wallcovering, 331 NLRB 883, 884-885 (2000) may be read to impose any other requirement.

Charges filed by Laborers’ International Union of North America, Local No. 872, AFL-CIO.  Administrative Law Judge Clifford H. Anderson issued his decision on August 17, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Garda CL Great Lakes, Inc.  (09-CA-087203 and 09-RC-085968; 359 NLRB No. 148), Columbus, Ohio, June 28, 2013.

The Board set aside the results of an election and directed a second election at the respondent employer’s armored truck facility in Columbus, Ohio.  The armored guards complained repeatedly to management about excessive heat conditions in the sealed armored trucks due to faulty air conditioning, often working 12-13 hour shifts in armored trucks with interior temperatures of over 105 degrees.  The respondent’s management failed to meaningfully address the employees’ serious health and safety concerns.  An organizing campaign ensued and a representation election was scheduled.  Suddenly after the election petition was filed, the respondent’s management sprung into action to address and resolve the employees’ concerns.  Two officials from corporate management were sent on an unprecedented visit to the Columbus facility where they arranged for around-the-clock repairs of the trucks, provided the new benefit of free water to drivers, and arranged for cleaning of the facility, which those management officials characterized as “disgusting.”  These hastily granted benefits were timed to be accomplished prior to the arrival at the Columbus facility of the respondent’s Director of Labor Relations to urge the employees to vote against union representation.  Indeed, the respondent sent one of its officials back to Columbus, on a second trip prior to the election, to further solicit the employees’ grievances with the implicit promise of remedying them.

The Board accordingly found that the respondent violated Section 8(a)(1) of the Act, and engaged in objectionable conduct, by prior to the election granting benefits to unit employees, and soliciting the employees’ grievances and promising to remedy them, thus impairing employee free choice in the election.  The Board remanded the proceeding to the Regional Director for Region 9 to conduct a second election. 

Charge and Petition filed by United Federation of Special Police and Security Officers, Inc.  Administrative Law Judge Arthur J. Amchan issued his decision on March 19, 2013.  Chairman Pearce and Members Griffin and Block participated.  

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American Medical Response of Connecticut, Inc.  (34-CA-013051; 359 NLRB No. 144) West Hartford, CT, June 28, 2013.

The Board agreed with the administrative law judge that the respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with the Union about a change to its start-of-shift procedures and violated 8(a)(1) of the Act by discharging a union steward. With respect to the unilateral change allegation, the Board found that the respondent unilaterally changed from non-enforcement to strict enforcement of its procedures without bargaining. With respect to the unlawful discharge allegation, the Board found that, under NLRB v. Burnup & Sims, 379 U.S. 21 (1964), the Acting General Counsel showed that the union steward did not actually engage in the alleged misconduct of initiating an unlawful work stoppage.

Charges filed by individuals. Administrative Law Judge Raymond P. Green issued his decision on November 20, 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

 Premier Holding Company, Inc. d/b/a Premier Electric  (19-RC-089887) Hayden, ID, June 26, 2013.

The Board unanimously adopted the hearing officer’s recommendation to overrule the petitioner’s challenges to the ballots of two employees, whom the petitioner contended were statutory supervisors.  The Board agreed with the hearing officer that the petitioner failed to introduce sufficient evidence to prove that either of the employees possessed any of the Section 2(11) indicia of supervisory status.

In the absence of exceptions, the Board adopted pro forma the hearing officer’s recommendation to overrule the challenge to the ballot of another voter, whom the Board agent challenged on the basis that his mail ballot arrived late.

Mail ballot election held between January 7 and 28, 2013.  Petitioner—International  Brotherhood of Electrical Workers, Local Union 73.  Chairman Pearce and Members Griffin and Block participated.

Pac Tell Group, Inc., d/b/a U.S. Fibers  (10-RC-101166) Trenton, S.C. June 26, 2013.  Order denying employer’s Motion for Reconsideration of Board Order denying review of Acting Regional Director’s Decision and Direction of Election.  The Board denied the Motion for Reconsideration without prejudice to the employer renewing its argument as to the alleged supervisory status of four individuals on exceptions to a report on objections or on a request for review of the Regional Director’s decision.  The Board rejected the employer’s argument that the Board should hold the proceeding in abeyance because it lacks a quorum.   Petitioner – United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7898.  Chairman Pearce and Members Griffin and Block participated.

Coca-Cola Refreshments USA, Inc.  (16-RC-086891) Fort Worth, TX, June 27, 2013.  No exceptions having been filed to the hearing officer’s report recommending overruling objections to an election, the Board adopted the hearing officer’s recommendation and found that a certification of results of election should be issued, certifying that the Petitioner is not the exclusive bargaining representative of the unit employees.  Petitioner—Brewery, Warehouse, Industrial and Miscellaneous Workers and Drivers, Fort Worth, Tarrant County and Texas, Teamsters Local Union Number 997.

Time Warner Cable Northeast LLC  (03-RC-103749) Ulster Park, NY, June 27, 2013.  The Board denied the employer’s appeal of the Regional Director’s rejection of its motion to correct her Order directing a hearing on challenged ballots.  Petitioner—International Brotherhood of Electrical Workers Local Union 320, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

First Student  (13-RD-102567) Batavia, IL, June 27, 2013.  The Board denied petitioner’s request for review of the Regional Director’s decision and order.  Petitioner – an individual.  Chairman Pearce and Members Griffin and Block participated.

The Sanson Company  (08-RC-099111) Cleveland, OH, June 28, 2013.  No exceptions having been filed to the hearing officer’s report on challenged ballots, the Board adopted the hearing officer’s findings and recommendations, and directed the Regional Director for Region 8 to open and count the ballots of four employees, and prepare a revised tally of ballots and issue the appropriate certification.  Petitioner – Teamsters Local Union 507 a/w International Brotherhood of Teamsters.

C Cases

UNITE HERE, Local 1 (Riva Restaurant)  (13-CB-098725) Chicago, IL, June 24, 2013.  The Board denied charged party UNITE HERE Local 1’s petition to revoke a subpoena duces tecum.  Charges filed by individuals.  Chairman Pearce and Members Griffin and Block participated.

Lincoln Park Care Center  (22-CA-098358) Lincoln Park, NJ, June 24, 2013.  Order denying the petition filed by Lincoln Park to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the union failed to establish any other legal basis for revoking the subpoena.  Charges filed by individuals.  Chairman Pearce and Members Griffin and Block participated.

Brisam (de) Lax, LLC, McSam Hotel, LLC, The Packard Companies d/b/a Holiday Inn Lax Hotel  (31-CA-091788, et al.) Los Angeles, CA, June 24, 2013.  The Board denied The Packard Companies’ petition to revoke a subpoena duces tecum.  Charges filed by UNITE HERE Local 1.  Chairman Pearce and Members Griffin and Block participated.

Hospital of Barstow, Inc., d/b/a Barstow Community Hospital  (31-CA-090049) Barstow, CA, June 24, 2013.  The Board denied the union’s request for special permission to appeal the administrative law judge’s ruling denying in part its motion in limine and its petition to revoke subpoenas.  Charges filed by California Nurses Association/National Nurses Organizing Committee (CAN/NNOC), AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

Heartland Human Services  (14-CA-096323) Effingham, IL, June 24, 2013.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion for summary judgment should not be granted.  Charges filed by American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL-CIO. 

Advanced Life Systems, Inc.  (19-CA-096464) Yakima, WA, June 24, 2013.  The Board denied respondent’s amended motion to dismiss the consolidated complaint.  Charges filed by Service Employees International Union.  Chairman Pearce and Members Griffin and Block participated.

Independent Certified Emergency Professionals, Local No. 1  (28-CB-092161) Mesa, AZ, June 26, 2013.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motions for default judgment should not be granted.

Delaware Valley Floral Group, Inc. d/b/a Delaware Valley Wholesale Florist  (05-CA-096037) Baltimore, MD, June 27, 2013.  Order denying respondent’s motion for summary judgment.  Charges filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

Fairmont General Hospital  (06-CA-099791) Fairmont, WV, June 27, 2013.  Order denying respondent’s motion for summary judgment.  Charge filed by SEIU/District 1199, WV/KY/OH, The Health Care and Social Service Union, CTW, CLC.  Chairman Pearce and Members Griffin and Block participated.

Hanson Aggregates BMC, Inc.  (04-CA-037998, 069822) Penns Park, PA, June 28, 2013.  Order denying the charging party union’s motion for reconsideration of the Board’s approval of the formal settlement stipulation in these cases.  Charges filed by International Union of Operating Engineers Local 542, AFL-CIO.  Chairman Pearce and Member Block participated; Member Griffin, who was a member of the panel, recused himself and took no part in the consideration of this case.

South Water Market, Inc.  (13-CA-103435) Chicago, IL, June 28, 2013.  The Board denied petitions to revoke two subpoenas issued to individuals during the Region’s investigation of allegations that the employer unlawfully coerced employees to cease supporting the union during a strike.  Relying on Bloomingdale’s, Inc., 359 NLRB No. 113 (2013), the Board rejected the individuals’ argument that the subpoenas were void because the Board lacked a quorum.  Charge filed by Teamsters Local 703.  Chairman Pearce and Members Griffin and Block participated.

Prime Healthcare Services-Encino, LLC d/b/a Encino Hospital Medical Center  (31-CA-066061, et al.) Encino, CA, June 28, 2013.  Order denying the charging party unions’ requests for special permission to appeal the rulings of the administrative law judge denying in part their petitions to revoke the respondents’ subpoenas duces tecum.  The Board held that the unions failed to establish that the judge abused his discretion.  Charges filed by SEIU Local 121RN and SEIU United Healthcare Workers West.  Chairman Pearce and Members Griffin and Block participated.

BCI Coca-Cola Bottling Company of Los Angeles  (28-CA-022792) Tempe, AZ, June 28, 2013. Order denying the respondent’s motion for reconsideration of the Board’s April 30, 2013 Decision and Order remanding the case to the administrative law judge to conduct a hearing and determine whether the settlement agreement between the respondent and the union warrants deferral to the parties’ grievance-arbitration procedure.  The Board rejected the respondent’s contentions that the Board did not have a valid quorum and that the Board erred in directing the administrative law judge to decide Section 8(a)(1) allegations.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated. 

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Appellate Court Decisions

No Appellate Court decisions regarding NLRB cases were issued this week.

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 Administrative Law Judge Decisions

Aggregate Industries Northeast Region, Inc.  (01-CA-071831; JD(NY)-30-13) Saugus, MA.  Charge filed by International Brotherhood of Teamsters, Local 42.  Administrative Law Judge Steven Davis issued his decision on June 24, 2013.

SFTC, LLC d/b/a Santa Fe Tortilla Company  (28-CA-087842, 095332; JD(SF)-30-13) Santa Fe, NM.  Charge filed by an individual and Comite de Trabajadores de Santa Fe Tortilla.  Administrative Law Judge William G. Kocol issued his decision on June 25, 2013.

Bloomingdale’s, Inc.  (31-CA-071281; JD(SF)-29-13) Sherman Oaks, CA.  Charge filed by an individual.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on June 25, 2013.

Rosdev Hospitality, Secaucus, L.P. and La Plaza, Secaucus, LLC, joint employers d/b/a Crowne Plaza Hotel & Convention Center  (22-CA-078843, 22-CA-081066; JD(NY)-31-13) Secaucus, NJ.  Charge filed by New York Hotel & Motel Trades Council, AFL-CIO.  Administrative Law Judge Steven Fish issued his decision on June 28, 2013.

Roy Spa, LLC  (19-CA-083329; JD(ATL)-18-13) Great Falls, MT.  Charge filed by International Brotherhood of Teamsters Local 2.  Administrative Law Judge Michael A. Marcionese issued his decision on June 28, 2013. 

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