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Summary of NLRB Decisions for the Week of June 4-8, 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 Decision

Pratt Industries, Inc. (29-CA-030271, et al.; 358 NLRB No. 52) Staten Island, NY, June 5, 2012.

The Board unanimously adopted the administrative law judge’s findings that the employer, Pratt Industries, committed several violations of the Act during a first-contract negotiation.  Specifically, the Board found that the parties were not at a bargaining impasse when the employer unilaterally implemented a new schedule that reduced some employees’ scheduled hours of work, subcontracted bargaining unit work to two unnamed individuals, and changed sick leave and call-out policies.  Chairman Pearce and Member Griffin further found that the employer violated the Act when it unilaterally subcontracted work to an employee who was “auditioning” for a full-time position.  Member Hayes dissented as to the subcontracting to that employee, and would have found that it was consistent with the employer’s narrow past practice of auditioning subcontractors for full-time positions.

Charges filed by the International Union of Operating Engineers, Local 30.  Administrative Law Judge Lauren Esposito issued her decision on August 30, 2011.  Chairman Pearce and Members Hayes and Griffin participated.

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Taylor Made Transportation Services, Inc. (05-CA-036646; 358 NLRB No. 53) Baltimore, MD, June 7, 2012. 

The Board, in agreement with the administrative law judge, found that the employer violated the Act by discharging an employee, who had disclosed her wage rate, pursuant to its unlawful rule prohibiting wage discussion.  The Board found it unnecessary to pass on whether the employee engaged in protected concerted conduct because the employee disclosing her wage rate was clearly conduct implicating Section 7 concerns under the standard recently articulated in Continental Group, Inc., 357 NLRB No. 39 (2011).  Member Hayes, concurring, agreed that the discharge was unlawful, but would find the employee’s conduct to be protected concerted activity and thus would not pass on whether the discharge was unlawful because the employee’s conduct implicated Section 7 concerns.

Charge filed by an individual.  Administrative Law Judge Bruce D. Rosenstein issued his decision on December 15, 2011.  Members Hayes, Griffin, and Block participated.    

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UNITE HERE, Local 7, AFL-CIO (SSP America, Inc.) (05‑CB‑064466; 358 NLRB No. 51) Baltimore, MD, June 5, 2012.

The Acting General Counsel sought a default judgment in this case on the ground that the respondent failed to file an answer to the complaint.  The Board ordered the respondent to cease and desist from failing promptly to comply with employees’ requests for a copy of the effective collective-bargaining agreement with the employer; and restraining or coercing employees in the exercise of the rights guaranteed them by the Act.

Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Trinity Senior Living Communities d/b/a Sanctuary at the Abbey (07‑RC‑074765) Warren, MI, June 4, 2012.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – SEIU Healthcare Michigan.  Chairman Pearce and Members Griffin and Block participated.

Blossom View Nursing Home, Inc. (03-RC-073573) Sodus, NY, June 4, 2012.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – Retail Wholesale & Department Store Union/UFCW, Local 220.  Chairman Pearce and Members Griffin and Block participated.

Allied Aviation Service Company of New Jersey (22-RC-077044) Elizabeth, NJ, June 5, 2012.  Order amending the Regional Director’s decision to permit Training Supervisors to vote by challenged ballot and denying the employer’s request for review and the International Association of Machinists and Aerospace Workers’ motion to reopen the record and intervene.  Petitioner – Local 553, International Brotherhood of Teamsters.  Chairman Pearce and Members Griffin and Block participated.

Watkins Security Agency of DC, Inc., and Covenant Security Services, LTD (05‑RC‑016458) Washington, DC, June 5, 2012.  Order denying petitioner’s request for review of the Regional Director’s decision and order.  Petitioner – United Security and Police Officers of America (USPOA).  Chairman Pearce and Members Griffin and Block participated.

Equity Group – Kentucky Division, LLC (26-RC-072802) Franklin, KY, June 6, 2012.  Order denying petitioner’s request for review of the Regional Director’s decision and order.  Petitioner – Teamsters, Local 89.  Chairman Pearce and Members Griffin and Block participated.

General Electric Company (14-RC-073765) West Burlington, IA, June 6, 2012.  Order denying employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – IUE-CWA, Industrial Division of the Communications Workers of America, AFL-CIO, CLC.  Chairman Pearce and Members Griffin and Block participated.

Shambaugh & Sons, L.P. (25-RC-062774) Fort Wayne, IN, June 7, 2012.  Decision and certification of representative.  Petitioners – International Union of Operating Engineers, Local 103 and Laborers International Union of North America, Local 213.

Automatic Fire Systems (11-RC-006757) Hardeeville, SC, June 7, 2012.  Decision and certification of results of election.  Petitioner – Local 669, United Association of Journeymen, Apprentices of the Plumbing & Pipefitters Industry of the United States and Canada, AFL-CIO.

BWI Taxi Management, Inc. (05-RC-016489) BWI Airport, MD, June 8, 2012.  Decision on review and order affirming the Acting Regional Director’s findings and remanding the proceeding to the Regional Director for further appropriate action.  Petitioner – Evening Shift Cab Operators Association.  Members Hayes, Griffin, and Block participated.

C Cases

American Postal Workers Union, San Francisco Local, AFL-CIO (20‑CB‑062958) San Francisco, CA, June 4, 2012.  Order adopting the findings and conclusions of the administrative law judge’s decision and ordering the respondent to take the recommended action.  Charge filed by an individual.

McIntosh Mirror, Door & Glass, Inc. (19-CA-065627, et al.) Seattle, WA, June 4, 2012.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.  Charges filed by Glaziers, Architectural Metal and Glassworkers, Local 188.

Food Services of America, Inc. a subsidiary of Services Group of America, Inc. (28‑CA‑063052) Scottsdale, AZ, June 5, 2012.  Order denying motion to accept respondent’s exceptions to decision of administrative law judge and brief in support of exceptions.  Charge filed by an individual.

Quad/Graphics, Inc. (32-CA-025762, et al.) Fernley, NV, June 5, 2012.  Order denying petitioner’s petition to partially revoke subpoena duces tecum.  Charges filed by Graphics Communications Conference of the International Brotherhood of Teamsters, Local 715-C.  Members Hayes, Griffin, and Block participated.

Loomis Armored US, Inc. (32-CA-025316) Stockton, CA, June 7, 2012.  Order granting request to file brief as amicus curiae of the Service Employees International Union.  Charge filed by Teamsters, Local 315.

47 Old Country, Inc. d/b/a Babi I; Jilly SN, Inc., Babi Nail USA II Corp. d/b/a Babi II (29‑CA‑030247) Carle Place, NY, June 7, 2012.  Order granting the counsel for the Acting General Counsel’s motion to strike respondent’s post-trial exhibit and striking Exhibit B to the memorandum in support of respondents’ exceptions to the administrative law judge’s recommended decision and order because it was not among the exhibits accepted at the hearing and was not part of the record.  Charge filed by Chinese Staff & Workers Association.

Jewish Hospital & St. Mary’s Healthcare, Inc. d/b/a Our Lady of Peace (09‑CA‑066542) Louisville, KY, June 8, 2012.  Order adopting the findings and conclusions of the administrative law judge’s decision and ordering the respondent to take recommended action.  Charge filed by AFSCME Council 62, American Federation of State, County and Municipal Employees.

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Appellate Court Decisions

E.I. DuPont de Nemours & Co., Board Case Nos. 4‑CA‑33620 (reported at 355 NLRB No. 177) and 9‑CA‑40777 (reported at 355 NLRB No. 176) (D.C. Circuit decided June‑8, 2012)

In a published opinion, the Court granted the employer's petition for review and remanded these unilateral change cases to the Board.

The employer maintains a medical benefit plan that contains a reservation of rights clause granting the employer discretion to change the plan so long as any change in price or coverage is announced during the annual enrollment period and not altered during the plan year.  Pursuant to that reservation of rights clause, the employer regularly altered its plan at the beginning of each year.  At its facilities in Louisville, Kentucky and Edgemoor, Delaware, the employer enjoys a collective bargaining relationship with the Union featuring contracts that, for the purposes of the Court's decision, incorporate the benefit plan's reservation of rights clause and have allowed the employer to alter the plan without bargaining.  After the contracts expired and during negotiations for successor agreements, however, the employer again changed the plan.  The Board found those changes unlawful because the reservation of rights clause did not survive contract expiration, and the employer "had never before made changes to [the benefit plan] between the expiration of one and the negotiation of another CBA, and therefore had not established a past practice justifying its unilateral changes . . . during such a hiatus." 

The Court reversed, explaining:  "The Board has previously recognized that the lawfulness of a change in working conditions made after the CBA has expired depends not upon 'whether a contractual waiver of the right to bargain survives the expiration of the contract' but rather upon whether the change 'is grounded in past practice, and the continuance thereof.'"  Slip op. at 8 (quoting Courier-Journal, 342 NLRB 1093, 1095 (2004)).  Finding that the Board failed to explain why that rule did not apply here—because, if it did, the employer proved a past practice of making unilateral changes prior to each enrollment year and the contracts' expiration was irrelevant—the Court remanded to the Board to consider why that precedent does not control.

The Court's opinion is available here.

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Decisions of Administrative Law Judges

Schwan’s Home Service, Inc. a wholly owned subsidiary of the Schwan Food Company (27‑CA‑066674; JD(SF)‑27‑12) Denver, CO.  Charge filed by an individual.  Administrative Law Judge Gerald A. Wacknov issued his decision on June 6, 2012.

MCPC, Inc. (06-CA-063690; JD-30-12) Pittsburgh, PA.  Charge filed by an individual.  Administrative Law Judge Michael A. Rosas issued his decision on June 7, 2012.

Hyundai of White Plains, LLC (02-RC-070017; JD(NY)-17-12) White Plains, NY.  Recommended decision on challenged ballots.  Petitioner – United Service Workers, Local 355, IUJAT.  Administrative Law Judge Steven Davis gave his recommendations on June 8, 2012.

Kingspan Insulated Panels, d/b/a Kingspan Benchmark (09‑CA‑072906, et al.; JD‑31‑12) Columbus, OH.  Charges filed by Sheet Metal Workers International Association, Local 24.  Administrative Law Judge Arthur J. Amchan issued his decision on June 8, 2012.

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