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Summary of NLRB Decisions for the Week of March 21-25, 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

MV Public Transportation, Inc.(29-CA-29530, et al.; 356 NLRB No. 116), Staten Island, NY, March 22, 2011.

The Board found that the employer violated the Act by prematurely recognizing the union because, at the time of recognition, the employer (1) did not employ a substantial complement of its anticipated workforce, and (2) was not yet engaged in its normal business operations.  Member Becker did not rely on the latter factor in finding that the employer violated the Act and would no longer apply it when determining whether an employer has prematurely recognized a union.  The Board also found that the union violated the Act by accepting the employer’s premature recognition. 

Charges filed by Individuals and Local 1181-1061, Amalgamated Transit Union, AFL-CIO.  Administrative Law Judge Michael A. Rosas issued his decision June 7, 2010.  Members Becker, Pearce, and Hayes participated.

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The Southern New England Telephone Company d/b/a AT&T Connecticut (AT&T East) (34-CA-12451; 356 NLRB No. 118), New Haven, CT, March 24, 2011.

The Board found that the employer violated Section 8(1) by prohibiting employees from wearing the so-called “Prisoner” shirt in support of the union during collective bargaining, and by threatening and suspending employees who refused to comply.  The Board agreed with the judge’s conclusion that the shirt was not reasonably likely, under the circumstances, to cause fear or alarm among the employer’s customers and that the employer failed to demonstrate “special circumstances” justifying the prohibition of the shirt.

Member Hayes dissented and would have found that the employer demonstrated special circumstances sufficient to justify its ban.  Member Hayes argued that the majority did not give sufficient weight to the potential for employees wearing these shirts to frighten customers in their own homes and thereby to cause substantial damage to the employer’s reputation. 

The charges were filed by Communication Workers of America.  Administrative Law Judge Steven Fish issued his decision on June 18, 2010.  Chairman Liebman and Members Becker and Hayes participated.

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SK Hand Tool (13-CA-46119 et al.; 356 NLRB No. 117), Chicago, IL, March 24, 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 complaint.

Charge filed by International Brotherhood of Teamsters Local Union 743, AFL-CIO. Chairman Liebman and Members Becker and Hayes participated.

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Bradford Printing and Finishing, LLC (01-CA-45575; 356 NLRB No. 109) Bradford, RI, March 25, 2011.

The Board adopted the Administrative Law Judge’s finding that an employee petition opposing continued representation by the Union was tainted by the Respondent’s preceding misconduct, including the violation of Section 8(a)(2) in establishing a labor-management committee to negotiate with management over terms of employment in place of the Union; and that the Respondent consequently violated Section 8(a)(5) by refusing to bargain with the Union on the purported basis of that petition.  In addition to the 8(a)(2) violation, the Board relied on the Respondent's preceding and ongoing refusal to recognize and bargain with the Union after becoming a successor under NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), as an additional, independent basis for finding the employee petition tainted.  Member Hayes agreed with the majority that the petition was tainted by the Respondent’s unlawful refusal to bargain with the Union, and did not rely on the Respondent’s 8(a)(2) violation. 

The charges were filed by the New England Joint Board, Unite-Here.  Administrative Law Judge Raymond P. Green issued his decision on April 14, 2010.  Chairman Liebman and Members Becker and Hayes participated

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New York New York Hotel and Casino (28-CA-14519-R et al., 356 NLRB No. 119) Las Vegas, NV, March 25, 2011.

On remand from the Court of Appeals for the District of Columbia, the Board (Chairman Liebman and Members Becker and Pearce) adopted a new standard for assessing the rights of a contractor’s off-duty employees to engage in handbilling on property where they work but whose owner is not their employer.  Under this standard, the Board will assess the facts of each case to find the proper accommodation between the individuals’ Section 7 rights and the owner’s property and management rights.  Applying the test to this case -- which involved organizational, customer-directed handbilling by employees of New York New York’s food service contractor Ark Las Vegas at the casino’s main entrance and at the entrances to two Ark restaurants inside the facility -- the Board majority found that the casino acted unlawfully in prohibiting the Ark employees’ handbilling at both the main entrance and the restaurant entrances. 

Member Hayes dissented in part, arguing that the majority’s test gave too little weight to the Ark employees’ status as nonemployees of New York New York and failed to consider alternative means by which the handbillers could have communicated their message.  Member Hayes would have found that New York New York violated the Act by prohibiting Ark employees from handbilling at the main entrance but not by prohibiting them from handbilling at the restaurant entrances within the facility. 

Charges filed by Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, affiliated with Hotel Employees and Restaurant Employees International Union, AFL-CIO.  The D.C. Circuit Court issued its decision remanding cases 28-CA-14519 and 28-CA-15148 to the Board December 24, 2002, and the Board held oral argument on the cases November 9, 2007.  Chairman Liebman and Members Becker, Pearce, and Hayes participated in the decision.

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Decisions of Administrative Law Judges

InternationalBridge and Iron Company (34-CA-12616; JD(ATL)-7-11) Newington, CT. Charge filed by Shopmen’s Local Union No. 832 of the International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, AFL-CIO. Administrative Law Judge Michael A. Marcionese issued his decision on March 21, 2011

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Random Acquisitions LLC (07-CA-52473; JD-15-11) Battle Creek, MI. Charge filed by an individual. Administrative Law Judge Mark D. Rubin issued his decision on March 21, 2011.

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Goya Foods, Inc., d/b/a Goya Foods of Florida (12-CA-19668 et al.; JD(ATL)-8-11) Miami, FL. Charge filed by Southern Regional, Joint Board Workers United, a/w SEIU. Administrative Law Judge Margaret G. Brakebusch filed her decision on March 21, 2011.

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SRC Painting, LLC, PBN, LLC & Liquid Systems, et al. (30-CA-16577 et al.; JD-17-11) Milwaukee, WI. Charge filed by 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.

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Goodyear Tire & Rubber Co. (26-CA-23778; JD(ATL)-04-11) Union City, TN. Charge filed by an individual. Administrative Law Judge William N. Cates issued his decision on March 25, 2011.

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Appellate Court Decisions

No decisions involving the NLRB were issued by the Appellate Courts this week.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Ecumen d/b/a Ecumen Scenic Shores (18-RD-02724) March 23, 2011. Order granting request for review.

Omni Waste Services Inc. (22-RD-01552) March 24, 2011. Decision and order remanding.

Pomptonian Food Service (22-RM-00755) March 24, 2011. Order granting request for review remanding to RD for further appropriate action.

Team Works USA, Inc. (19-RC-15316) March 25, 2011. Decision and direction that RD open and count ballot.

Ecumen d/b/a Ecumen Scenic Shores (18-RD-02724) March 25, 2011. Order denying special permission to appeal. 

C Cases

United Healthcare Workers – West, Services Employees International Union SEIU (Alta Bates Summit Medical) (32-CB-07058) March 22, 2011. Order denying petition to revoke subpoenas.

Fresh & Easy Neighborhood Market, Inc. (21-CA-38882, et al.) March 22, 2011. Order granting in part motion for reconsideration.

Iron Tiger Logistics, Inc. (16-CA-27543) March 23, 2011. Order denying motion for summary judgment.

St. VincentHospital d/b/a Christus St. Vincent Regional Medical Center (28-CA-23241) March 23, 2011. Order denying motion for summary judgment.

LakelandHealthcare Associates LLC d/b/a Wedgewood Healthcare Center (12-CA-27044) March 23, 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 April 6, 2011.

Northern Illinois Telecom Inc. (13-CA-46394) March 24, 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 April 7, 2011.

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