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Summary of NLRB Decisions for Week of March 18-22, 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

Heartland Human Services  (14-CA-087886, 359 NLRB No. 76) Effingham, IL, March 18, 2013.

The Board granted the Acting General Counsel’s motion for summary judgment on the refusal to bargain case on the ground that the respondent admitted the central factual allegations of the complaint and based its defense solely on the union’s loss of a decertification election and its assertion that the Board erred in ordering a re-run of the election.  The Board found that the union’s majority status does not present a genuine issue of fact at this time, because no final certification has issued in the decertification case.  The Board found that the respondent litigated the issue of the Board’s order to re-run the election in the decertification case and did not allege any special circumstances that would warrant further litigation of the issue in the unfair labor practice proceeding.  The Board ordered that the respondent cease and desist from advising the unit employees that it would not recognize the union because of the results of the decertification election.  The Board also ordered that the respondent recognize and bargain with the union, attend a scheduled labor-management meeting on request, schedule dates to bargain with the union on request, and give the union the information it requested for bargaining. 

Charge filed by American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

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Little River Band of Ottawa Indians Tribal Government  (07-CA-051156, 359 NLRB No. 84) Manistee, MI, March 18, 2013.

Citing San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), affd. 475 F.3d 1306 (D.C. Cir. 2007), the Board found that the Little River Band of Ottawa Indians Tribal Government is subject to the Board’s jurisdiction and that it violated the Act by maintaining and publishing certain provisions of its Fair Employment Practices Code and related regulations which, by their express terms, apply to the employees of the Little River Casino Resort, a wholly owned commercial gaming enterprise, and govern the rights of those employees to organize and bargain collectively.

Charge filed by Local 406, International Brotherhood of Teamsters.  Chairman Pearce and Members Griffin and Block participated.

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Mike-Sell’s Potato Chip Co.  (09-CA-072637, 359 NLRB No. 86) Dayton, OH, March 19, 2013.

The Board adopted the administrative law judge’s finding that the respondent violated the Act by making midterm modifications to the contractual health care benefits of the unit employees. The Board ordered the respondent to make whole the employees for all losses suffered as a result of the unlawful modification including depositing in to the employees’ health saving accounts the amounts it failed to contribute.

Charge filed y Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 57, AFL-CIO-CLC.  Administrative Law Judge Paul Bogas issued his decision on July 3, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Walt Disney World Co.  (12-CA-025889, 359 NLRB No. 73) Lake Buena Vista, FL, March 19, 2013.

The Board adopted the administrative law judge’s conclusion – albeit for reasons that differed from those of the judge – that the respondent violated the Act by eliminating several job classifications and reassigning the work previously performed by employees in those classifications to other employees, during the term of its collective-bargaining agreement with the union.   Consistent with the complaint allegations, the Board concluded that the respondent’s elimination of its banquet captain and bar captain positions and concomitant reassignment of the duties previously performed by those classifications to non-unit managers constituted an unlawful change in the scope of the bargaining unit.  Additionally, the Board concluded that the respondent’s elimination of its banquet captain, bar captain, and bartender classifications constituted an unlawful mid-term contract modification, in violation of 8(d).  (The Board rejected as inconsistent with the complaint and the General Counsel’s theory of the case the judge’s conclusion that the respondent’s conduct in that regard constituted an unlawful unilateral change.)  In so concluding, the Board rejected the respondent’s contention that a management rights clause and other contractual language established that it had a “sound arguable basis” for interpreting the contract as ceding to it the authority to eliminate the classifications.   To remedy these violations, the Board ordered the respondent to restore the status quo ante, to continue in effect all terms and conditions of employment contained in the collective-bargaining agreement covering its employees, and to make the former captains and bartenders whole for any loss of earnings or benefits suffered as a result of the respondent’s unlawful actions.

Based on its conclusions – and the corresponding remedy – described above, the Board found it unnecessary to determine whether various changes to the collective-bargaining agreement resulting from the respondent’s elimination of the captain and bartender classifications and transfer of duties constituted independent unlawful mid-term contract modifications.   Finally, the Board adopted the judge’s conclusion that the respondent unlawfully failed to provide requested relevant information to the union, as well as his conclusion that deferral of the case to the parties’ grievance-arbitration procedure was not appropriate.

Charge filed by United Food and Commercial Workers Union, Local 1625.  Administrative Law Judge George Carson II issued his decision on June 2, 2009.  Chairman Pearce and Members Griffin and Block participated. 

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Encino Hospital Medical Center  (31-CA-066945, 359 NLRB No. 78) Encino, CA, March 19, 2013.

The Board remanded this unlawful discharge case to the administrative law judge with instructions to re-examine the record and prepare a supplemental decision specifically setting forth credibility determinations, a complete and accurate statement of the relevant facts, and a new legal analysis.  

Charge filed by SEIU United Healthcare Workers-West.  Administrative Law Judge Gerald A. Wacknov issued his decision on July 26, 2012.  Chairman Pearce and Members Griffin and Block participated.

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WHDH-TV  (01-CA-046744, 359 NLRB No. 81) Boston, MA, March 19, 2013.

The Board adopted the administrative law judge’s finding that the employer did not violate the Act by ceasing to honor employees’ dues-checkoff authorizations after the expiration of the parties’ collective-bargaining agreement.  The Board noted that although in WKYC-TV, Inc., 359 NLRB No. 30 (2012), it overruled Bethlehem Steel and its progeny “to the extent they stand for the proposition that dues checkoff does not survive contract expiration,” it did so prospectively only.  Accordingly, the Board adopted the judge’s finding that, because the employer was privileged under Bethlehem Steel to cease honoring the dues-checkoff arrangement after the expiration of the parties’ collective-bargaining agreement, the employer did not violate the Act as alleged.  The draft includes a footnote that rejects the argument that the Respondent forfeits its right to cease checking off dues by continuing to honor a dues-checkoff provision after contract expiration.  The footnote clarifies that agreement in Tribune is distinguishable from this case because the employer unlawfully reneged on an express agreement to allow employees to have their union dues deducted through the employer’s direct deposit system during the hiatus between collective-bargaining agreements. 

Charge filed by American Federation of Television and Radio Artists, Boston Local, AFL‑CIO.  Administrative Law Raymond P. Green issued his decision on April 11, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Fraser Engineering Company, Inc.  (01-RC-080901, 359 NLRB No. 80) Newton, MA, March 20, 2013.

The Board denied review of the Acting Regional Director’s decision.  The Board found that the employer did not meet its burden of showing that its wholly-owned subsidiary’s employees share such an overwhelming community of interest with the petitioned-for employees that there is no legitimate basis on which to exclude them.

Petitioner – Pipefitters, Local 537, a/w United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry, AFL-CIO.  The Acting Regional Director issued her decision on August 9, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Salem Hospital Corporation a/k/a the Memorial Hospital of Salem County  (04-CA‑073474, 359 NLRB No. 82) Salem, NJ, March 22, 2013.

The Board agreed with the Administrative Law Judge and found that the Memorial Hospital of Salem County violated the Act by failing to provide the union with the information requested in the union’s October 20, 2011 letter and by rejecting the union’s request in that letter to bargain over all discipline, including discharges.  In ordering Memorial Hospital to furnish that information to the union to the fullest extent allowed by law, the Board did not preclude it from raising medical and patient confidentiality arguments during compliance.  It also ordered Memorial Hospital to bargain with the union on requests concerning discipline, including discharges.

Charge filed by Health Professionals and Allied Employees (HPAE). Administrative Law Judge Arthur J. Amchan issued his decision on September 14, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Patrish, LLC, d/b/a Northwest Airport Inn  (14-CA-080874, 359 NLRB No. 83) St. Ann, MO, March 20, 2013.

The Board adopted the administrative law judge’s findings that the respondent violated the Act by unilaterally subcontracting the work of all bargaining unit employees without giving notice and an opportunity to bargain with the union, terminating the two remaining bargaining unit members, refusing to bargain for a successor contract, and withdrawing recognition of the union.  The Board also found it unnecessary to rely on the judge’s inference that notice to union benefit funds of prior layoffs was notice to the union itself, absent evidence showing that officials of union benefit funds acted as agents of the union.

Charge filed by UNITE HERE, Local 74.  Administrative Law Judge Arthur J. Amchan issued his decision on October 24, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Henry Rodriguez Sr., Henry Rodriguez Jr., Monica Pritchett, and Christopher Pritchett, a California General Partnership d/b/a Life’s Connection  (32-CA-068654, et al., 359 NLRB No. 85) Hollister and San Jose, CA, March 20, 2013.

The Board granted the Acting General Counsel’s motion for default judgment on the ground that the respondent failed to file an answer to the compliance specification.  Accordingly, the Board concluded that the gross backpay due the discriminates as stated in the compliance specification, and ordered the respondent to pay those amounts, plus additional backpay that may accrue in the absence of a valid offer of reinstatement, plus interest accrued to the date of payment.  On November 6, 2012, the United States Court of Appeals for the Ninth Circuit entered its judgment enforcing the Board’s order.

Charges filed by individuals.  Chairman Pearce and Members Griffin and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Construction Industry Employers Association  (03-RC-078994) Buffalo, NY, March 20, 2013.  Order denying the petitioner’s request for review of the Regional Director’s decision to dismiss.  Petitioner – Concerned Carpenters for a Democratic Union.  Chairman Pearce and Members Griffin and Block participated.

Allied Aviation Services of New Jersey  (22-RC-077044) Elizabeth, NJ, March 20, 2013.  Order denying the employer’s motion to strike, Local 553, International Brotherhood of Teamsters’ answering brief in opposition to the employer’s exceptions.  Petitioner – Local 553, IBT.

Aramark Educational Services, LLC  (04-RC-094530) Philadelphia, PA, March 21, 2013.  With no exceptions having been filed, the Board adopted the hearing officer’s findings and recommendations and ordered that the election conducted on January 16, 2013, be set aside and a new election conducted.  Petitioner – Philadelphia Joint Board Workers United a/w SEIU.

Kaiser Foundation Health Plan, Inc.; Kaiser Foundation Hospitals; Southern California Permanente Medical Group; The Permanente Medical Group, Inc.  (32‑RC‑005775) Oakland and Pasadena, CA, March 22, 2013.  Order granting the petitioner's request for special permission to appeal the Regional Director's refusal to provide it with the electronic mailing list provided by the employers to the region for mailing label purposes, including its request to supplement its brief, and denying the appeal on the merits because the petitioner had not shown that the Regional Director abused his discretion.  Petitioner – National Union of Healthcare Workers- California Nurses Association, AFL-CIO (NUHW-AFL-CIO).  Chairman Pearce and Members Griffin and Block participated.

C Cases

Hanson Aggregates BMC, Inc.  (04-CA-033330, et al.) Penns Park, PA, March 19, 2013.  Order granting the charging party’s request for review of the Acting General Counsel’s decision sustaining the Regional Director’s compliance determination, and remanding the case to the Regional Director for further appropriate action.  Charges filed by International Union of Operating Engineers, Local 542, AFL-CIO.  Chairman Pearce and Member Block participated. 

United States Postal Service  (07-CA-086657) Novi, MI, March 19, 2013.  With no statement of exceptions having been filed, the Board adopted the findings and conclusions of the Administrative Law Judge’s decision and ordered the respondent to take the recommended action.  Charge filed by Branch 3126, National Association of Letter Carriers (NALC), AFL‑CIO.  

Hills and Dales General Hospital  (07-CA-053556) Cass City, MI, March 21, 2013.  Order granting the Acting General Counsel’s motion to strike the respondent’s amended exceptions.  Charge filed by an individual.

Mid-West Telephone Service, Inc.  (08-CA-038901, et al.) Girard, OH, March 21, 2013.  With no statement of exceptions having been filed, the Board adopted the findings and conclusions of the administrative law judge’s supplemental decision and order.  Accordingly, the respondent’s application for attorney’s fees and expenses was dismissed.  Charges filed by individuals.

Service Employees International Union United Healthcare Workers West (Kaiser Permanente)  (21‑CB‑095564) Anaheim, CA, March 21, 2013.  Order denying the union’s petition to revoke subpoena ad testificandum.  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

Big Moose, LLC  (15-CA-019735, et al., JD(ATL)-06-13) New Orleans, LA.  Charges filed by an individual and International Alliance of Theatrical Stage Employees, Local 478 (The Green Lantern).  Administrative Law Judge Michael A. Marcionese issued his decision on March 18, 2013.

Evolution Mechanical Services, Inc., and Murray Mechanical Services, Inc.  (21‑CA‑039887, JD(SF)‑13‑13) Buena Park, CA.  Charge filed by Sheet Metal Workers’ International Association, Local 105, AFL‑CIO.  Administrative Law Judge William L. Schmidt issued his decision on March 19, 2013.

Garda CL Great Lakes, Inc.  (09-CA-087203, et al., JD-15-13) Columbus, OH.  Charge filed by United Federation of Special Police and Security Officers, Inc.  Administrative Law Judge Arthur J. Amchan issued his decision on March 19, 2013.

Federal Signal Corporation  (13-CA-084282, et al., JD-11-13) University Park, IL.  Charges filed by an individual.  Administrative Law Judge Christine E. Dibble issued her decision on March 20, 2013.

Greenheck Fan Corporation  (30-CA-087881, JD-16-13) Schofield, IL.  Charge filed by an individual.  Administrative Law Judge Paul Bogas issued his decision on March 21, 2013.

Wellington Industries, Inc.  (07-CA-091271, JD-19-13) Belleville, MI.  Charge filed by Local 174, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on March 21, 2013.

Springfield Day Nursery a/k/a Square One  (01-CA-062517, et al., JD-18-13) Springfield, MA.  Charges filed by United Automobile, Aerospace and Agricultural Implement Workers of America, Local 2322, AFL-CIO.  Administrative Law Judge Michael A. Rosas issued his decision on March 21, 2013.

Fresh & Easy Neighborhood Market  (31-CA-077074, et al., JD(SF)-14-14) El Segundo, CA.  Charges filed by United Food and Commercial Workers International Union.  Administrative Law Judge Gerald A. Wacknov issued his decision on March 22, 2013.

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