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Summary of NLRB Decisions for the Week of June 27 to July 1, 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

The Musical Arts Association (08-CA-38834; 356 NLRB No. 166) Cleveland, OH, June 28, 2011.

The Board adopted the administrative law judge’s finding that the Respondent violated the Act by, since September 9, 2009, withdrawing recognition from and refusing to bargain with the American Federation of Musicians of the United States and Canada, AFL-CIO/CLC, as the joint exclusive representative of the musicians of the Cleveland Orchestra with regard to certain electronic media issues.

Charge was filed by the American Federation of Musicians of the United States and Canada, AFL-CIO/CLC. Administrative Law Judge Eric M. Fine issued his decision on January 13, 2011. Chairman Liebman and Members Pearce and Hayes participated.

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Oasis Mechanical Contractors, Inc. (05-CA-36269; 357 NLRB N. 3) Lanham, MD, June 29, 2011.

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s withdrawal of its answer to the complaint.

Charge filed by Steamfitters Local 602, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, International Brotherhood of Teamsters Local 743, AFL-CIO.  Members Becker, Pearce, and Hayes participated.

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John Succi Contracting, Inc. (04-CA-36427; 357 NLRB No. 1) Yardley, PA, June 29, 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.  The Board found that Respondent Succi Contracting established Respondent JS as a disguised continuation and alter ego of Respondent Succi Contracting, and ordered both Respondents to pay backpay to the employees who it had unlawfully laid off.

Charge filed by Metropolitan Regional Council of Carpenters, Southeastern Pennsylvania, State of Delaware and Eastern Shore of Maryland.  Members Becker, Pearce, and Hayes participated

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Interstate Bakeries Corporation (17-CA-23404 et al.; 356 NLRB No. 4) Ponca City, OK, June 30, 2011.

The Board found that the employer and the union violated the Act by agreeing to endtail, rather than dovetail, the seniority of an employee, following the merger of two represented units and the inclusion of the previously-unrepresented employee in the merged unit.  In finding the conduct to be unlawful, the Board found that the employee was treated unfavorably solely on the basis of his prior lack of representation by the union, and that the parties did not endtail the employee in order to protect unit seniority but in order to protect union seniority.  The Board stated that although the union was legitimately concerned about its duty to the employees it already represented, in the context of a unit merger, a union and an employer are not lawfully permitted to discriminate against all or some of the merged employees on the basis of their previously unrepresented status.  Accordingly, the Board concluded that the employer and union violated the Act by agreeing to endtail the employee on the combined seniority list, permitting him to be bumped from his job at the Ponca City facility, and transferring him to a job at the Bartlesville facility, all because he was not previously represented by the union. 

Charges were filed by an individual.  Administrative Law Judge Gerald A. Wacknov issued his decision on October 31, 2006.  Chairman Liebman and Members Becker and Pearce participated.

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SRC Painting, LLC, PBN, LLC & Liquid Systems, et al. (30-CA-16577; 356 NLRB No. 5) Milwaukee, WI, June 30, 2011.

The Board adopted the administrative law judge’s findings on remand that the Respondent did not establish any affirmative defenses to mitigate its liability and that the named discriminatee was entitled to backpay.  The Board modified the judge’s recommended order by including the amounts owed to various funds, pursuant to the compliance specifications. 

Charge was filed by the International Union of Painters and Allied Trades, District Council No. 7, AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on March 24, 2011. Chairman Liebman and Members Pearce and Hayes participated.

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Special Touch Home Care Services, Inc. (29-CA-26661; 357 NLRB No. 2) Brooklyn, NY, June 30, 2011.

This case, on remand from the Second Circuit, involved a strike by employees of a home health care provider.  The Board majority, consisting of Chairman Liebman and Member Becker, found that the employer violated the Act by refusing immediate reinstatement to 47 economic strikers.  The Union had provided the employer with timely notice of the strike, as required by the Act when striking a health care institution.  The employer contended, however, that it lawfully denied immediate reinstatement because the 47 employees told the employer during a pre-strike poll that they planned to work during the time period of the strike and because they failed to comply with an employer rule that required them to notify the employer if they would not be reporting to work for any reason.  In rejecting the employer’s arguments, the Board majority noted that employees are not required to give individualized advance notice of their intent to participate in a strike, that there was no evidence that the employees’ conduct created an imminent danger, and that there was no evidence of a concerted effort to mislead the employer in responding to the poll.  Dissenting, Member Hayes found that the employer had shown a sufficiently compelling business justification for enforcing its notification rule, that this justification outweighed the minimal burden imposed on employees’ protected right to strike, and that the majority’s position eviscerated the usefulness of the pre-strike poll.

Charge filed by New York’s Health and Human Service Union 1199/SEIU.  Administrative Law Judge Raymond P. Green issued his decision on September 15, 2005.  The Board issued a Decision and Order on September 29, 2007, and the United States Court of Appeals for the Second Circuit remanded the case to the Board on May 12, 2009.  Member Pearce was recused and took no part in consideration of the case. Chairman Liebman and Members Becker and Hayes participated. 

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Decisions of Administrative Law Judges

G4S Regulated Security Solutions, A Division of G4S Secure Solutions (USA) Inc. f/k/a The Wackenhut Corporation (12-CA-26644 et al.; JD(ATL)-16-11) Miami-Dade County, FL. Charges filed by individuals. Administrative Law Judge William N. Cates issued his decision on June 28, 2011.

A.D. Conner, Inc., Gas City, LTD, Heidenreich Trucking Company, McEnery Enterprises, McEnery Trucking & Leasing, LLC, et al. (13-CA-46359 et al.; JD-35-11) Frankfort, IL. Charges filed by Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union Local No. 142, an affiliate of The International Brotherhood of Teamsters and Truck Drivers, Oil Drivers, Filling Station and Platform Workers, Local 705, an affiliate of International Brotherhood of Teamsters. Administrative Law Judge Paul Buxbaum issued his decision on June 29, 2011.

Service Employees International Union, United Healthcare Workers-West (Lakewood Regional Medical Center) (21-CB-15007; JD(SF)-14-11) Lakewood, CA. Charge filed by National Union of Healthcare Workers. Administrative Law Judge Clifford H. Anderson issued his decision on June 29, 2011.

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Appellate Court Decision

SEIU, Local 121RN (21-CB-14428 355 NLRB No. 40) June 28 2011

In an unpublished memorandum opinion, the Ninth Circuit enforced the Board's order and denied both the Union's and the Charging Party's petitions for review.

First, the Court agreed that the Union unlawfully distributed a flyer suggesting that nonmembers could be subject to fines and back-dues if they ceased participating in dues check-off after contract expiration.  As the Court found, substantial evidence supported the Board's finding that "the strong unconditional language of the flyer was coercive as to the employees who had no obligation to pay dues during the contractual hiatus."  Further, it found waived the Union's arguments that the Board applied the wrong legal standard, as the Union did not present them to the Board in the first instance.  Second, the Court rejected the Charging Party's challenge to the Board's failure to pass on the lawfulness of a flyer describing the California strikebreaker as cumulative.  Because the Charging Party never filed a motion for reconsideration of the Board's cumulative finding, the Court found it waived under Section 10(e) of the Act.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Sheraton Station Square Hotel (06-RM-000733) June 28, 2011. Order granting request to withdraw motion. 

Prairie Farms Dairy, Inc. (25-UC-00242) June 29, 2011. Order denying request for review.

Watkins Security Agency of DC Inc. (05-RC-16618) June 29, 2011. Decision and order remanding.

Olmsted County Waste to Energy Facility (18-WH-00024) June 29, 2011. Certification of representative as bona fide under Section 7(b) of the Fair Labor Standards Act of 1939.

County of Lyon,, Minnesota (18-WH-000026) June 30, 2011. Certification of representative as bona fide under Section 7(b) of the Fair Labor Standards Act of 1938.

TAC Transport, LLC (22-RC-13160) July 1, 2011. Decision and certification of representative.

C Cases

CP Sacramento, LLC, d/b/a Hilton Sacramento Arden West Hotel (20-CA-34751 et al.) June 28, 2011. Order adopting Respondent to take action.

Day & Zimmerman NPS, Inc. (07-CA-52733 et al.) June 28, 2011. Order adopting Respondent to take action.

NHS Human Services Inc. of Alleheheny and Westmoreland (06-CA-37002) June 28, 2011. Order adopting Respondent to take action.

Avista Corporation (19-CA-33103) June 28, 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 12, 2011.

Tricont Trucking Company (04-CA-37628 et al.) June 29, 2011. Order adopting Respondent to take action.

Quality Roofing, Inc., Yeadon and York Facilities (04-CA-36952 et al.) June 29, 2011. Order denying special appeal.

Atlantic Scaffolding Company (16-CA-26108) June 30, 2011. Order denying motion for reconsideration.

Willis Roof Consulting, Inc. (28-CA-20852) July 1, 2011. Order denying motion for reconsideration.

Ozburn-Hessey Logistics, LLC (26-CA-23497 et al.) July 1, 2011. Order granting the Petitioner’s request to withdraw its petition in Case 28-RC-8596. Cases 26-CA-23675 and 26-CA-23734 remain before the Board for consideration and decision.

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