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Summary of NLRB Decisions for Week of June 25-29, 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

Quality Health Services of P.R., Inc., d/b/a Hospital San Cristobal (24-CA-011630;358 NLRB No. 70) Ponce, PR, June 25, 2012.

The Board unanimously adopted the administrative law judge’s finding that the respondent, Hospital San Cristobal, violated  the Act when it changed the way it calculated its nurses’ incentive pay without notice to or bargaining with the union.  Due to a change in minimum wage laws, the respondent had increased the pay of nurses, but in doing so, also eliminated some shift incentives those nurses had previously earned.  The Board affirmed the judge’s finding that the change in minimum wage did not compel the respondent to remove nurses’ incentive pay, and that the respondent was required to first bargain with the union before making such changes.

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.  Members Hayes, Griffin, and Block participated.

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Virginia Mason Hospital (a division of Virginia Mason Hospital Center) (19‑CA‑030154; 358 NLRB No. 64) Seattle, WA, June 25, 2012.

The Board found that the employer violated the Act by providing false and misleading information to the union and by not timely providing relevant information requested by the union.  Member Hayes would dismiss the allegations regarding the information requests.  The Board went on, however, to dismiss the allegations that the employer unlawfully implemented a new influenza policy without affording the union notice and opportunity to bargain over the decision to implement the policy and its effects. 

Charge filed by the Washington State Nurses Association.  Administrative Law Judge Gregory Z. Meyerson issued a supplemental decision on November 25, 2011.  Members Hayes, Griffin, and Block participated.

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Tesco PLC d/b/a Fresh & Easy Neighborhood Market, Inc. (31-CA-029913, et al.; 358 NLRB No. 65) Los Angeles, CA, June 25, 2012. 

The Board, reversing the administrative law judge, found that the employer unlawfully required employees to distribute a coupon flyer directly to customers that employees reasonably would have perceived to be a component of their employer’s campaign against the union organizing its employees.  Member Hayes would not have found the coupon flyer a violation because the flyer was neutral on unionization.  The Board adopted the judge’s findings that the employer violated the Act by coercively interrogating an employee, creating an impression of surveillance, and prohibiting employees from discussing their discipline.  Member Hayes would not have found the coercive interrogation and impression of surveillance violations.  The Board also adopted the judge’s dismissal of an allegation that the employer prohibited employees from discussing the union on the clock. 

Charges filed by the United Food and Commercial Workers International Union.  Administrative Law Judge Lana H. Parke issued her decision on October 18, 2011.  Chairman Pearce and Members Hayes and Griffin participated.    

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Marquez Brothers, Enterprises, Inc. (21-CA-039581, et al.; 358 NLRB No. 61) City of Industry, CA, June 25, 2012.

The Board adopted the administrative law judge’s finding that the respondent violated Section 8(a)(3) of the Act by discharging two employees; and Section 8(a)(1) by interrogating employees about their protected activity, threatening retaliation, and coercing employees to revoke their signed union authorization cards.  A Board majority also found the violations sufficiently serious and widespread in their impact to justify requiring the respondent’s chief executive officer or (at the respondent’s option) a Board agent in that officer’s presence to read the remedial notice aloud to the respondent’s employees in English and Spanish.  Member Hayes would not have imposed the read-aloud requirement. 

Charges filed by individuals.  Administrative Law Judge William G. Kocol issued his decision on June 22, 2011.   Members Hayes, Griffin, and Block participated.

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Gaylord Chemical Co., LLC (10-CA-038782, 358 NLRB No. 63) Bogalusa, LA to Tuscaloosa, AL, June 25, 2012.

The Board found that the employer unlawfully withdrew recognition from the union and refused to bargain following a move from Bogalusa, LA to Tuscaloosa, AL.  A substantial complement of unit employees transferred to the new facility and the employer’s operations and equipment remained the same.  The Board also found that the employer unlawfully refused to provide information requested by the union, created a new unit position, and interrogated an employee about union sympathies.  Although Chairman Pearce and Member Hayes found it unnecessary to pass on the illegality of a second interrogation, Member Griffin would have found that a second employee—a former union officer—also was coercively interrogated. 

Charge filed by United Steelworkers International Union, Local 887.  Administrative Law Judge Ira Sandron issued his decision on August 18, 2011.  Chairman Pearce and Members Hayes and Griffin participated.

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Gloria J. Verno d//b/a Joe’s Painting and its alter ego Joe’s Painting, Inc.: T&M Painting, Inc., etc. (06‑CA‑036647; 358 NLRB No. 75) Coal Center, PA, June 26, 2012. 

The Board granted the Acting General Counsel’s motion for partial summary judgment as to particular paragraphs of the compliance specification issued by the Regional Director because the employer’s answer was inadequate.  The Board reasoned that the employer only attempted to raise matters that had been decided in the underlying unfair labor practice proceeding.

Charge filed by International Union of Painters and Allied Trades, District Council 57 of Western Pennsylvania, AFL‑CIO, CLC.  Members Hayes, Griffin, and Block participated.    

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Mercy Health Partners (07–CA–052693; 358 NLRB No. 69) Muskegon, MI, June 26, 2012.

The Board majority, consisting of Chairman Pearce and Member Block, partially agreed with the administrative law judge and found that, under Dubuque Packing Co., 303 NLRB 386 (1991), the employer did not violate the Act when it decided to relocate unit work without first bargaining with the union.  The Board majority further found, contrary to the judge, that the employer violated the Act by directly dealing with unit employees over the effects of that relocation on their terms and conditions of employment.  Member Hayes concurred in part and dissented in part.  He agreed with the Board majority that the employer did not violate the Act when it decided to relocate unit work, but he believed that the employer’s actions should be reviewed under First National Maintenance, 452 U.S. 666 (1981), rather than Dubuque Packing.  Member Hayes disagreed with the Board majority’s finding that the employer dealt directly with unit employees and instead found that the employer permissibly announced a predetermined course of action.   

Charge filed by SEIU Healthcare Michigan.  Administrative Law Judge George Carson II issued his decision on October 4, 2010.  Chairman Pearce and Members Hayes and Block participated.

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Kieft Brothers, Inc. (13-CA-045023, et al.; 358 NLRB No. 72) Elmhurst, IL, June 26, 2012.

The Board reaffirmed its earlier decision by a two-Member panel, reported at 355 NLRB 116 (2010), adopting the administrative law judge’s findings that the respondent violated the Act by (1) laying off nine employees with unlawful animus; (2) by failing to bargain with the union over the layoff and by failing to provide a requested copy of its health plan; and (3) interrogating and threatening employees for their protected activity.  The Board found that the respondent was not shown to have violated the Act by failing to respond in a timely manner to the union’s request for information concerning its financial condition. 

Charges filed by General Teamsters, Chauffeurs, Salesdrivers and Helpers, Local 673, and an individual and Construction and General Laborers, Local 25.  Administrative Law Judge Arthur J. Amchan issued his decision on July 21, 2009.  Members Hayes, Griffin, and Block participated.

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Kennametal, Inc. (01-CA-046293, et al.; 358 NLRB No. 68) Lyndonville, VT, June 26, 2012. 

The Board, presented with multiple unilateral change and failure to provide information allegations arising from the implementation of a new safety program, reversed in part and affirmed in part the administrative law judge’s decision.  The Board reversed the judge’s finding that implementing a rule requiring employees to complete a safety checklist before using equipment was an unlawful unilateral change because the union waived the right to bargain safety rules in its collective-bargaining agreement.  The Board found, affirming the judge with a different rationale, that, despite the waiver, the employer had to respond to a request for information on the safety checklist because the union put the employer on notice that it also sought the information for effects bargaining, which is another legitimate basis.  The Board adopted the judge’s finding that the employer violated the Act by unilaterally excluding the union from participating in accident investigations.  The Board agreed with the judge that the employer violated the Act by unilaterally eliminating progressive discipline for safety violations, but relied on a different analysis to conclude that the allegation was not time-barred by Section 10(b) of the Act.   

Charges filed by United Steelworkers, Local 5518, affiliated with United Steelworkers of America, AFL-CIO, CLC.  Administrative Law Judge Arthur J. Amchan issued his decision on April 12, 2011.  Chairman Pearce and Members Griffin and Block participated.    

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Russell Nelson, Inc. (17-CA-025175; 358 NLRB No. 71) Leawood, KS, June 26, 2012.

The Acting General Counsel sought default judgment in this case on the ground that the respondent failed to file an answer to the compliance specifications.  The Board ordered that the respondent make whole the individuals named in the decision, by paying them the amounts following their names, plus interest accrued to the date of payment, plus interest accrued to the date of payment computed daily, minus tax withholdings required by Federal and State laws.

Charge filed by Operative Plasterers and Cement Masons, Local 538.  Chairman Pearce and Members Griffin and Block participated.

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Comau, Inc. and Comau Employees Association (07-CA-052614, et al.; 358 NLRB No. 73) Southfield and Novi, MI, June 27, 2012.

The Board (Chairman Pearce and Member Griffin; Member Hayes dissenting in part) found that the respondent employer did not violate the Act by withdrawing recognition from the charging party union as the exclusive collective-bargaining representative of the unit employees based on a disaffection petition that was signed by a majority of the employees.  The Board additionally found that the employer and the respondent union, respectively, did not violate the Act by extending and accepting recognition, and by entering into a collective-bargaining agreement containing a union security clause.  However, the Board found that the employer and the respondent union unlawfully coerced employees to sign dues-checkoff authorization forms.  In his partial dissent, Member Hayes stated that he would find the evidence insufficient to establish that the respondent union unlawfully coerced employees to sign such forms.

Charges filed by Automated Systems Workers, Local 1123, affiliated with Carpenters Industrial Council, United Brotherhood of Carpenters and Joiners of America.  Administrative Law Judge Geoffrey Carter issued his decision on December 21, 2010.  Chairman Pearce and Members Griffin and Hayes participated.

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Atlantic Veal and Lamb, Inc. (29-CA-024484 et. al.; 358 NLRB No. 74) New York, NY, June 27, 2012. 

The majority of the Board found that the administrative law judge erred by disqualifying the discriminatee from backpay based on documents presented by the discriminatee to a third-party mortgage lender. The Board found that the conflicting evidentiary documents were not sufficient to meet the employer’s burden to show that the discriminatee lied to the Board about his interim earnings.  Member Hayes, dissented, would have found that the evidence presented was sufficient to meet the employer’s burden of proof. 

Charges filed by Knitgoods Workers’ Union, Local 155, Union of Needletrades, Industrial & Textile Employees, AFL-CIO.  Administrative Law Judge Raymond P. Green issued second supplemental decision on July 16, 2010.  Chairman Pearce and Members Hayes and Griffin participated. 

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Merchants Building Maintenance, LLC (28-CA-022660, et al.; 358 NLRB No. 67) Santa Fe, NM, June 27, 2012.

The Board adopted the administrative law judge’s finding that the respondent violated the Act by refusing to rehire 21 janitors for the 2009-2010 school year in retaliation for their protected activity; and by threatening employees for that protected activity.  The Board found that the respondent’s contentions that the discriminatees submitted their applications for rehire too late and that they were not eligible to work in the United States were pretextual.  The Board rejected the General Counsel’s request to include employee Norma Garcia in its remedial order, based on his previous failure either to include Garcia in the original complaint or to amend the complaint at any time, and on applicable precedent.

Charges filed by individuals.  Administrative Law Judge Lana H. Parke issued her decision on November 23, 2010.  Members Hayes, Griffin, and Block participated.

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Flex-N-Gate Texas, LLC (16-CA-027742, et al.; 358 NLRB No. 76) Arlington, TX, June 27, 2012.

The Board found that the employer, an automotive parts manufacturer and assembler, violated the Act by: (1) interrogating employees through offering them anti-union stickers during an election campaign; (2) coercively interrogating an employee and promising him unspecified benefits if he refused to support the union; (3) threatening employees with discharge for supporting the union; and (4) discharging three employees due to their pro-union activities.  Regarding the discharged employees, the Board also found that there was insufficient evidence to establish that they were supervisors. 

Charges filed by United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO.  Administrative Law Judge Margaret G. Brakebusch issued her decision on December 28, 2011.  Chairman Pearce and Members Hayes and Block participated.

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Station Casinos, Inc., Aliante Gaming, LLC, Boulder Station, Inc., d/b/a Boulder Station Hotel & Casino, Palace Station Hotel & Casino, Inc., d/b/a Palace Station Hotel & Casino (28‑CA‑023436, et al.; 358 NLRB No. 77) Las Vegas, NV, June 27, 2012.

The Board found that the employer violated the Act by threatening an employee with discharge if he continued to engage in protected concerted activity, such as asking when additional employees would be hired in an under-staffed department.  The Board also found that there was insufficient evidence to show that an employee was a supervisor, and therefore that employee’s alleged anti-union remarks to a fellow employee did not violate the Act. 

Charges filed by Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226 and Bartenders Union, Local 165, affiliated with UNITE HERE, AFL-CIO.  Administrative Law Judge Gerald M. Etchingham issued his decision on February 2, 2012.  Chairman Pearce and Members Hayes and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Englewood Auto Group, LLC (22-RC-071848) Englewood, NJ, June 26, 2012.  Decision and certification of representative.  Petitioner – Local 259, United Auto Workers, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

Park West Executive Services, Inc. d/b/a Town Cars International (29‑RC‑076915) Long Island City, NY, June 27, 2012.  Decision and certification of representative.  Petitioner – District Lodge 15, International Association of Machinists and Aerospace Workers, AFL-CIO.

Suiza Dairy Corp. (24-RC-081423, et al.) San Juan, PR, June 27, 2012.  Order denying the employer’s appeal from the Acting Regional Director’s order approving waiver and disclaimer of interest and revoking certification and employer’s motion to stay election process.  Petitioner – Central General de Trabajadores. Chairman Pearce and Members Griffin and Block participated.

County of Cass, Minnesota (18-WH-079356) Walker, MN, June 27, 2012.  Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938.  Petitioner – Teamsters General Local Union 346.

Seton Medical Center/Seton Coastside (20-RC-073334) Daly City and Moss Beach, CA, June 27, 2012.  Decision and direction that the Regional Director open and count ballots.  Petitioner – National Union of Healthcare Workers (NUHW).

Arc of Monroe County (The) (03-RC-081311) Rochester, NY, June 28, 2012.  Order granting employer’s request for special permission to appeal the Regional Director’s determination to conduct the election by mail ballot and denying appeal inasmuch as there was no showing that the Regional Director abused discretion in directing a mail ballot election.  Petitioner – SEIU, Local 200 United.  Chairman Pearce and Members Griffin and Block participated.

Neiman Marcus Group (The), Inc., d/b/a Bergdorf Goodman (02‑RC‑076954) New York, NY, June 29, 2012.  Order granting motion to file amicus brief.  Petitioner – Local 1102, Retail Wholesale Department Store Union.

Comfort Solutions, Inc. (05-RC-016680) Springfield, VA, June 29, 2012.  Decision and certification of representative.  Petitioner – Sheet Metal Workers International Association, Local 100.  Chairman Pearce and Members Hayes and Griffin participated.

C Cases

K-VA-T Food Stores, Inc., d/b/a Food City (09-CA‑046125, et al.) Louisa, KY, June 25, 2012.  Order granting the counsel for the Acting General Counsel’s and respondent’s requests to withdraw exceptions and to remand case to the Regional Director for approval of informal settlement agreement.  Charges filed by Retail Wholesale Department Store Union.

SEIU, United Healthcare Workers-West (Kaiser Permanente) (21‑CB‑075064) Baldwin Park, CA, June 25, 2012.  Order denying petition to revoke/quash subpoena duces tecum.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

1621 Route 22 West Operating Co., LLC d/b/a Somerset Valley Rehabilitation and Nursing Center (22‑CA‑029599, et al.) West Boundbrook, NJ, June 26, 2012.  Order denying respondent’s motion for permission to file order by United States Court of Appeals for the Third Circuit granting partial stay pending appeal in related 10(j) proceeding.  Charges filed by 1199 SEIU United Healthcare Workers East, New Jersey Region.

Calhoun Foods, LLC d/b/a Key Food (29-CA-030861, et al.) South Ozone Park, NY, June 26, 2012.  Order adopting the findings and conclusions of the administrative law judge’s decision and ordering the respondent to take the recommended action.  Charges filed by Local 338, Retail, Wholesale and Department Store Union, United Food and Commercial Workers.

United States Postal Service (10-CA-038097(P)) Jacksonville, AL, June 29, 2012. Decision and order that respondent cease and desist from unduly delaying furnishing information to the union, as the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit, and interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

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Appellate Court Decisions

Atrium of Princeton, Board Case No. 22-CA-027066 (reported at 356 NLRB No. 6) (D.C. Cir. decided June 29, 2012)

In a published decision, the Court enforced the Board's decision in full, agreeing that this New Jersey-based nursing home unlawfully refused to bargain and unilaterally implemented new employment terms following a broken impasse. 

Throughout 2005, the nursing home and the union were negotiating for a new contract, and they deadlocked over the nursing home's contribution to the union's benefit fund.  In August, the nursing home claimed impasse.  The following December, however, it was sold to the current owner, Atrium of Princeton.  Around the same time, the benefit fund cancelled the employees' health benefits because the home was delinquent in payments, and shortly thereafter, Atrium began implementing a replacement health-care plan without bargaining.  The union requested negotiations and information, which Atrium rebuffed.  On these facts, the Board concluded that, even if an impasse had occurred in August, the subsequent sale of the facility, cancellation of the union health benefits, and implementation of Atrium's insurance plan broke it.  The need to negotiate a new health care plan created "the possibility of productive bargaining," according to the Board. 

The Court agreed.  On appeal, Atrium offered two affirmative defenses to the Board's decision.  First, it claimed that it should not be held responsible for unilaterally implementing a new health insurance plan because the Union intentionally caused the Fund to cancel the prior plan, leaving employees without insurance.  The Court, however, affirmed the Board's conclusion that, even if Atrium's theory had legal merit, Atrium failed to show that the Fund was the Union's agent.  As the Court explained, there was no evidence that the Union had control over the Fund, nor was there evidence that the Fund's trustees breached their fiduciary duty to the Fund by pursuing "the Union's interests rather than those of the employee beneficiaries."  Second, the Court dismissed Atrium's argument that the impasse remained in place despite the lapse in health coverage.  Instead, adopting the Board's reasoning, the Court held that the "non-payment and the resulting cancellation 'alter[ed] the economic calculus' of the Union . . . by signaling dramatically reduced likelihood the Union could convince [Atrium] to contribute significantly more to the Fund than it had offered."   Rejecting a host of other defenses in a footnote, the Court enforced the Board's order in full.

The Court's published opinion is available here

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Decisions of Administrative Law Judges

Flamingo Las Vegas Operating Company, LLC (28‑CA‑069588, et al.; JD(SF)‑31‑12) Las Vegas, NV.  Charges filed by International Union, Security, Police and Fire Professionals of America (SPFPA).  Administrative Law Judge Gregory Z. Meyerson issued his decision on June 25, 2012.

Print Fulfillment Services, LLC (09-CA-068069, et al.; JD‑29‑12) Louisville, KY.  Charges filed by Graphic Communications Conference of the International Brotherhood of Teamsters District Council 3, Louisville Local, 619‑M.  Administrative Law Judge Paul Buxbaum issued his decision on June 27, 2012.

Michael J. Malpere Company, Inc. (22-CA-030045; JD(ATL)‑15‑12) Cranford, NJ, June 27, 2012.  Charge filed by Bricklayers & Allied Craftworkers Administrative District Council of New Jersey, Local 4.  Administrative Law Judge William Nelson Cates issued his decision on June 27, 2012.

United States Postal Service (07-CA-065355; JD‑34‑12) Jonesville, MI.  Charge filed by Michigan Postal Workers Union, American Postal Workers Union (APWU), AFL-CIO.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on June 28, 2012.

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