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Summary of NLRB Decisions for Week of March 19-23, 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

Pennsylvania State Corrections Officers Association (04-CA-037648, et al.; 358 NLRB No. 19) Harrisburg, PA, March 23, 2 012.  

The Board affirmed the administrative law judge’s dismissal of the allegation that the employer, a union, unlawfully repudiated a collective bargaining agreement entered into with the union representing its employees.  The Board found that the employer was not bound to the agreement because, although the employer’s outgoing president remained president when it was signed, the employer’s president did not have the authority to enter into an agreement without the approval of the employer’s executive board.  Further, the Board found that the union’s lone negotiator, because of his familiarity with the employer’s governance, could not have reasonably believed that the employer’s president had such authority.  The Board also affirmed the judge’s dismissal of the allegation that the employer unlawfully failed to bargain over the decision to terminate five business agents.  

Charges filed by Business Agents Representing State Union Employees Association.  Administrative Law Judge Robert A. Giannasi issued his decision on March 17, 2011.  Chairman Pearce and Members Hayes and Griffin participated.  

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UNITE HERE! Local 1 (13-CB-019622; 358 NLRB No. 22) Chicago, IL, March 23, 2012.

The Board adopted the administrative law judge’s finding that the respondent (the union) violated the Act by refusing to honor its previous agreement to bargain with the employer over certain issues.  In September 2009, the respondent and the employer entered into a “me-too” agreement generally binding them to the terms of a collective-bargaining agreement to be negotiated between the union and the Sheraton Chicago Hotel, but carving out, in paragraph III of the agreement, certain issues to be bargained directly.  The judge found that the agreed-upon carve-out encompassed nine issues, and that the union’s subsequent refusal to bargain about six of them was unlawful.  The judge then rejected the union’s contention that the parties’ dispute should be deferred to arbitration under Collyer Insulated Wire, 192 NLRB 837 (1971).  While the union excepted to the judge’s failure to consider whether deferral was appropriate before he decided the merits of the allegation, the Board found that any error in this regard was harmless.

Charge filed by Ritz-Carlton Water Tower Partnership.  Administrative Law Judge Paul Buxbaum issued his decision on November 29, 2012.  Chairman Pearce and Members Flynn and Block participated. 

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Service Employees International Union, United Healthcare Workers-West (Lakewood Regional Medical Center) (21-CB-015007; 358 NLRB No. 18) Lakewood, CA, March 22, 2012.

The Board found that the union violated the Act by unlawfully enforcing the contractual union-security clause and thereby causing the employer to terminate an employee/member, based on his dues arrearages, without first discharging the union’s fiduciary duty to provide the employee/member adequate notice of his outstanding dues obligations.  The Board ordered the union to (1) cease and desist from causing the employer to discharge or otherwise discriminate against employee/members for nonpayment of periodic dues without first providing adequate notice of the dues obligations, including credits for any partial payments made; (2) rescind its request for the employee/member’s discharge and notify the employer that the union has no objection to his reinstatement; (3) make the discharged employee/member whole for any loss of earnings and benefits resulting from the discrimination against him; (4) expunge its files of any reference to the discharged employee/member’s unlawful termination, ask the employer to do the same, and notify him in writing that it has done so; and (5) post a notice to employee/members and ask the employer to post copies of the same if willing.  (The Board rejected the union’s defense contending that it was excused from strictly complying with its fiduciary duty because the discharged employee/member was a free rider.)

Charge filed by the National Union of Healthcare Workers.  Administrative Law Judge Clifford H. Anderson issued his decision on June 29, 2011.  Members Hayes, Flynn, and Block participated.

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Ferguson Enterprises, Inc. (07-CA-052306; 358 NLRB No. 20) Detroit, MI, March 20, 2012.

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

Charge filed by an individual.  Members Hayes, Griffin, and Flynn participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Republic Services (25-RC-068088) Demotte, IN, March 20, 2012.  Order correcting decision, order, and direction of second election issued on March 16, 2012.  Petitioner – International Union of Operating Engineers, Local 150, AFL-CIO. 

Veolia Transportation Services, Inc. (28-RC-071479) Las Vegas, NV, March 19, 2012.  Order granting the petitioner’s request for review of the Regional Director’s decision and order.  Member Hayes dissented:  would deny petitioner’s request for review.  Petitioner – Amalgamated Transit Union, Local 1637, AFL-CIO.  Members Hayes, Griffin, and Flynn participated.

Bread of Life, LLC (07-RC-072022) Portage, MI, March 21, 2012.  Order denying employer’s request for review of the Acting Regional Director’s decision and direction of election.  Petitioner – Local 70, Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, AFL-CIO, CLC.  Members Hayes, Griffin, and Flynn participated.

Progressive Logistics Services (01-RC-066336) Methuen, MA, March 22, 2012.  Decision and certification of representative.  Petitioner – United Food and Commercial Workers, Local 791. 

DPI Secuprint, Inc. (03-RC-012019) Rochester, NY, March 22, 2012.  Order granting motion for acceptance of amicus brief.  Petitioner – Graphic Communications Conference/International Brotherhood of Teamsters, Local 503-M.

C Cases

Channel Islands Logistics, Inc., Channel Islands Warehouse, Inc., Seaboard Produce Distributors, Inc. (31-CA-063866, et al.) Oxnard, CA, March 22, 2012.  Order denying petitions to revoke subpoenas duces tecum B-614526, B-614524, and B-614525.  Charges filed by Teamsters, Local 186.  Members Hayes, Griffin, and Flynn participated.

Milum Textile Services Co. (28-CA-020898, et al.) Phoenix, AZ, March 23, 2012.  Order denying respondent’s motion to reopen the record.  Member Hayes dissented: would grant the respondent’s motion.  Charges filed by UNITE HERE! Chairman Pearce and Members Hayes and Griffin participated.

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Appellate Court Decisions

Ruan Transport Corp., Board Case No. 13-CA-46555 (reported at 356 NLRB No. 139) (7th Circuit decided March 19, 2012)

In a published opinion, the Court held that the Board acted within its discretion in counting a double-marked ballot, and affirmed the union's resulting election victory.  It therefore enforced the Board's order finding that the employer acted unlawfully when it refused to bargain to challenge the election results.

In a run-off mail ballot election between two competing unions, the determinative vote had markings in both unions' boxes.  As the Court described:

In the left-hand box, the one for Local 705, there is a clear, heavily marked “X” in black ink filling the entire box, with no additional markings.  In the right hand box, the one for Local 710, there is a faintly visible “X” in black ink filling the box—the “X” is partially smudged and partially scratched out.  Also, the “X” in the right-hand box has been shaded or colored over by what appears to be a pink or purple highlighter with an ink color that is similar, but slightly darker, than the color of the pink ballot paper.  As a result of these supplemental markings, the paper inside the box has been darkened to a pink-purple color that does not match the bright pink of the rest of the paper.

The Board, affirming the hearing officer, rejected the employer's claim that the ballot was ruined, and, therefore, the election a stalemate.  Rather, the Board concluded that "the voter had attempted to obliterate his marking in the Local 710 box and had 'clearly and unambiguously' expressed intent to vote for Local 705."  Counting that vote, Local 705 won the election 15‑14, and the Board certified the results.

The Court concluded that the Board did not abuse its discretion.  In doing so, it first rejected the employer's contention that the Board improperly decided the case without reviewing the actual ballot, relying on a lack of evidence supporting the claim and the presumption of regularity in Board proceedings.  Next, the Court summarized the case by asking, "whether it is possible to discern a clear expression of the voter's intent based on the ballot's irregular markings."  It then answered: "We have reviewed the original ballot, and we find that it is possible."  The Court relied on the fact that the voter attempted to obliterate the vote for Local 710 with a marker the same color as the paper--"to minimize the appearance of the marking"--and then "left a distinct, heavily-marked 'X' in the Local 705 box, made with multiple pen strokes."  In that light, the intent of the voter was clear.

The Court's opinion is available here.

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Hard Rock Holdings, LLC, Board Case No. 28-CA-23259 (reported at 356 NLRB No. 132) (D.C. Cir. decided March 23, 2012)

In a published opinion, the Court enforced the Board's order in this election challenge case, agreeing that the employer, a Las Vegas hotel, unlawfully refused to bargain with the duly-certified union representing a unit of the employer's full-time and part-time valet-parking attendants. 

Rejecting the employer's two challenges, the Court agreed that the Board properly certified the union's victory in the underlying election.  First, the Court upheld the Board's finding that extrinsic evidence did not prove that the parties intended in their stipulated election agreement to include bell-desk employees who occasionally worked as valet parking attendants.  Rather, the Court held that substantial evidence supported the Board's findings that a brief conversation between employer counsel and the Board agent, after which a word was eliminated from the stipulated election agreement, did not prove that the parties adopted the employer's subjective intent to include the bell-desk employees.  Further, the union's decision not to challenge the bell-desk employees when it saw them on the Excelsior list "was not tantamount to approval of the bargaining unit as constituting the employees whose names were on the list."  Because the stipulated election agreement was ambiguous and extrinsic evidence did not clarify it, the Court upheld the Board's unchallenged decision that the bell-desk employees did not share a community of interest with the unit of valet parking attendants.

Second, the Court affirmed the Board's conclusion that the election was valid even though the two election observers did not wear badges showing their status and one voter showed confusion about the Board agent's identity.  On the day of the election, the Board agent realized that the election kit only had one badge, and decided that it was better to have neither observer wear a badge, rather than only one.  The Court held that "[t]he Board could reasonably conclude that there was no evidence the absence of observer badges had any effect on the fairness and validity of the election," and specifically noted that the Board's credibility findings on this point were reasonable.  When a voter unaware of the Board agent’s status began to make a scene, the agent identified himself as a government official and persuaded him to calm down and vote.  That also did not affect the election, according to the Court.  As the Court stated, "[t]he credited evidence failed to establish that the agent was responsible for the incident" and "[n]o evidence was presented that this incident impacted any employee's ability to vote or otherwise compromised election results."

The Court's opinion is available here.

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Decisions of Administrative Law Judges

Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino (28-CA-060841; JD(SF)-11-12) Las Vegas, NV.  Charge filed by International Union of Painters and Allied Trades, District Council 15, Local 159, AFL-CIO.  Administrative Law Judge William L. Schmidt issued his decision of March 20, 2012.

International Union of Operating Engineers, Local 14-14B (Skanska USA) (02-CB-063648; JD(NY)-5-12) Whitestone, NY.  Charge filed by an individual.  Administrative Law Judge Steven Davis issued his decision on March 20, 2012.

Town Development, Inc. t/a Parkway Center Inn (06-CA-037267; JD-16-12) Pittsburgh, PA.  Charge filed by Pennsylvania Joint Board a/w Workers United, SEIU.  Administrative Law Judge David I. Goldman issued his decision on March 22, 2012.

Amglo Kemlite Laboratories, Inc. (13-CA-065271; JD-15-12) Bensenville, IL.  Charge filed by an individual.  Administrative Law Judge Arthur J. Amchan issued his decision March 22, 2012.

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