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Summary of NLRB Decisions for Week of March 25-29, 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

Jag Healthcare, Inc. d/b/a Galion Pointe, LLC  (08-CA-039029, et al., 359 NLRB No. 88) Galion, OH, March 28, 2013.

The Board adopted the administrative law judge’s findings that the employer violated  the Act by refusing to recognize and bargain with the union and unilaterally changing bargaining unit employees’ terms and conditions of employment without first giving the union notice and an opportunity to bargain; by refusing to hire 21 of its predecessor’s employees because they were represented by the union and to avoid an obligation to recognize and bargain with the union; and by telling employees that there would be no union serving as their collective-bargaining representative once the respondent took control of operations, by issuing and maintaining an unlawful no-solicitation/no-distribution policy, and by prohibiting employees from discussing unions.  The Board found it unnecessary to decide whether the prohibition on discussing unions was a formal rule because the employer‘s actions violated the Act regardless of whether the employer can be said to have established a rule.  The Board also adopted the judge’s finding that the employer violated the Act by discharging three employees for discriminatory reasons.

Charges filed by Service Employees International Union, District 1199, WV/KY/OH.  Administrative Law Judge Geoffrey Carter issued his decision on July 27, 2012.  Chairman Pearce and Members Griffin and Block participated.

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ORNI 8, LLC, and ORPUNA, LLC d/b/a Puna Geo-thermal Venture  (20-CA-096143, 359 NLRB No. 87) Pahoa, HI, March 26, 2013.

This is a refusal-to-bargain case in which the respondent contested the union’s certification as bargaining representative in the underlying representation proceeding.  The Board having found that the respondent violated the Act, it was ordered to cease and desist, to bargain on request with the union, to furnish the union the information requested, and to ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law.

Charge filed by International Brotherhood of Electrical Workers, Local 1260.  Chairman Pearce and Members Griffin and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

NTN Bower Corporation  (10-RD-090682) Hamilton, AL, March 26, 2013.  Order affirming the Regional Director’s administrative dismissal of a decertification petition.   In affirming the dismissal, the Board noted that a settlement agreement required the employer to bargain and that a reasonable period for bargaining had not elapsed when the decertification petition was filed.  Petitioner – an individual.  Chairman Pearce and Members Griffin and Block participated.

Le Fort Enterprises, Inc. d/b/a Merry Maids of Boston  (01-RC-097257) Boston, MA, March 27, 2013.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 7, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

AURLP Holdings, LLC d/b/a Arrow Uniform  (07-RC-091307) Taylor, MI, March 27, 2013.  In light of exceptions and briefs, the Board adopted the hearing officer’s findings and recommendation, and directed the challenged ballot at issue to be opened and counted by the Regional Director.  Petitioner – International Brotherhood of Teamsters, Local 51. Chairman Pearce and Members Griffin and Block participated.

Brookhaven Memorial Hospital Medical Center  (29-RC-084828) Patchogue, NY, March 28, 2013.  With no exceptions having been filed, the Board adopted the Regional Director’s findings and recommendation and ordered that the proceeding be remanded to the Regional Director for further appropriate action. Petitioner – Local 342, United Food and Commercial Workers Union.

C Cases

Fused Solutions, LLC  (03-CA-098461) Potsdam, NY, March 25, 2013.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.  Charge filed by United Food and Commercial Workers, District Union, Local 1.

Comau, Inc.  (07-CA-094129) Southfield, MI, March 26, 2013.  Order denying the employer’s petition to revoke subpoena duces tecum.  Charge filed by Automated Systems Workers, Local 1123, affiliated with Carpenters Industrial Council, United Brotherhood of Carpenters and Joiners of America.  Chairman Pearce and Members Griffin and Block participated.

Stahl Specialty Company  (17-CA-088639) Kingsville, MO, March 26, 2013.  Order denying the respondent’s request for special permission to appeal the administrative law judge’s ruling denying the respondent’s petitions to revoke the subpoena duces tecum issued by the Acting General Counsel and the union.  Charge filed by International Brotherhood of Electrical Workers, Local 1464 affiliated with the International Brotherhood of Electrical Workers, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

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Appellate Court Decisions

Stella D'Oro Biscuit Co., Board Case No. 2-CA-038960 (reported at 355 NLRB No. 158) (2d Cir. decided March 28, 2013)

In a published decision the Court granted the employer’s petition for review, concluding that the employer did not unlawfully refuse to provide information during bargaining and that, consequently, the employees’ strike was not an unfair labor practice strike after which the strikers were entitled to immediate reinstatement. 

The employer was a bakery in Bronx, New York.  Originally a family-owned business, it became owned by Kraft Foods and, then, in 2006, was purchased by Brynwood, a firm specializing in turning around failing companies and selling them in a 5 to 10 year window.  As the collective bargaining agreement was coming to an end in June 2008, the parties began negotiations for a successor.  At the beginning of negotiations, the employer explained that sales were down and it was operating at a $1.6 million annual loss.  It further conveyed that Brynwood would continue operating at a loss for a short while, but that costs had to come under control, including by cutting its allegedly-high labor costs.  The union asked to see documentation supporting these claims of losses, and the employer agreed to share its 2007 financial statement at the next bargaining session.

At that session, the employer brought the statement, and made its first proposal, which involved across-the-board wage cuts, drastic reductions in sick days, and caps on vacation.  As to the statement, the employer shared it with the union, offered the union the opportunity to spend as much time reading it as it would like, but refused to make a copy for the union to retain, citing confidentiality concerns.  The employer brought the statement to subsequent bargaining sessions as well.  Ultimately, the employer offered the union an opportunity to review the statement at its offices with an attorney and accountant, which the union rejected, instead asserting that it was entitled to analyze the statement without time constraints.  Bargaining continued.  The employer made a final offer, the union rejected it, and it went on strike in August 2008, in part because the employer never provided a copy of the financial statement.  The employer subsequently declared impasse and implemented its final offer; the union demanded reinstatement in May 2009 under the terms of the prior agreement, which the employer refused.

On these facts, the Board found that the employer violated Section 8(a)(5) and (1) of the Act by refusing to provide the financial statement to the union after it declared an inability to pay for the union’s proposals.  Because the strike protested, in part, this unfair labor practice, the Board also found that the employer violated the Act by failing to reinstate the strikers upon their request to return to work. 

The Court disagreed.  Quoting the Board’s test in Nielsen Lithographing, 300 NLRB 697, 700 (1991), the Court observed that “there is a difference—and a ‘critical’ one—between the employer who claims a ‘present’ or ‘prospective inability to pay during the life of the contract being negotiated,’ and the employer ‘who claims only economic difficulties or business losses or the prospect of layoffs.’”  Only the former, under Board precedent, has an obligation to reveal financial information for an audit to justify its bargaining position.  Here, the Court concluded that the employer’s “bargaining position was based on its unwillingness, and not its inability, to meet the union’s contract demands,” as demonstrated by Brynwood’s willingness to fund the employer at a loss contingent on a long-term plan to restore profitability.  Therefore, according to the Court, there was no obligation to disclose the financial statement.  Further, the Court found itself bound by its prior decision in Stroehmann Bakeries, Inc. v. NLRB, 95 F.3d 218, 222 (2d Cir. 1996) – and unconvinced by the Board’s attempt to distinguish it.  Alternatively, the Court held that, even if the employer had claimed inability to pay and was required to disclose the financial statement, “the record is clear that [the employer] fully complied with that obligation by affording the Union multiple opportunities to examine and takes notes on [the document] that the Union had requested.”  After reviewing the statement itself, the Court rebuffed the Board’s finding that it was too complex to digest in the manner the employer offered.  Finally, because there was no unlawful refusal to bargain, the employees were mere economic strikers and not unfair labor practice strikers, and the Court therefore refused to order their reinstatement. 

Judge Cabranes concurred, agreeing that Stroehmann bound the panel, but offering his views on how the Board might address that case in future decisions. 

The Court’s opinion is available here.

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Engineering Contractors, Inc., Board Case No. 5-CA-36213 (reported at 357 NLRB No. 127) (4th Cir. decided March 28, 2013)

The Court enforced the Board’s order in full, agreeing that the employer had waived its remedial challenge by failing to raise it to the Board first. 

Engineering Contractors, a Maryland construction contractor, signed multiple recognition agreements with numerous unions in 2008.  About a year later, Engineering Contractors’ owners created another construction company, ECI.  They then shut down Engineering Contractors, fired the entire work force of 38 people, and refused further negotiations with the unions.  At the same time, however, they began operating as ECI and offered the discriminatees opportunities to apply with ECI.  The Board found that Engineering Contractors and ECI were a single employer and/or alter egos, that they unlawfully discharged the 38 employees because of their union affiliation, and that they unlawfully repudiated collective bargaining agreements and refused to bargain with the unions. 

On appeal, the employer did not challenge any of the Board’s merits findings, which the Court accordingly enforced summarily.  Instead, it argued only that the Board’s Order improperly required them to reinstate all 38 discriminatees, even though some of those positions no longer exist, and to recognize and bargain with all the unions, even if the employer no longer performed work covered by each individual labor organization.  Citing Section 10(e) of the Act, the Court “conclude[d] that we lack jurisdiction to consider [the employer’s] contentions because [the employer] failed to raise its objections to the remedies ordered in the proceedings before the Board.”  

The Court’s unpublished decision may be found here.

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Administrative Law Judge Decisions

SRM Alliance Hospital Services d/b/a Petaluma Valley Hospital  (20-CA-088742, JD(SF)‑15‑13) Petaluma, CA.  Charge filed by California Nurses Association/National Nurses United.  Administrative Law Judge Gerald M. Etchingham issued his decision on March 26, 2013.

Michigan State Employees Association  (07-CA-053541, et al., JD(ATL)-07-13) Lansing, MI.  Charges filed by Central Office Staff Association.  Administrative Law Judge Keltner W. Locke issued his decision on March 27, 2013.

Ohio Insulation and Manufacturing Company  (09-CA-087466, JD-21-13) Dayton, OH.  Charge filed by International Association of Heat and Frost Insulators and Allied Workers, Local 50, Columbus and Dayton, Ohio.  Administrative Law Judge Geoffrey Carter issued his decision on March 27, 2013.

Interstate Bakeries Corp.  (17-CA-023404, et al., JD-17-13) Ponca City, OK.  Charges filed by Teamsters, Local 523, affiliated with International Brotherhood of Teamsters.  Administrative Law Judge Bruce D. Rosenstein issued his decision on March 28, 2013.

Indiana Fire Sprinkler and Backflow, Inc.  (25-CA-088505, et al., JD-20-13) Ft. Wayne, IN.  Charges filed by Road Sprinkler Fitters, Local 669, UA, AFL-CIO.  Administrative Law Judge Mark Carissimi issued his decision on March 28, 2013.

Pressroom Cleaners, Inc.  (34-CA-071823, JD(NY)-14-13) Hartford, CT.  Charge filed by Service Employees International Union, Local 32BJ.  Administrative Law Judge Steven Fish issued his decision on March 29, 2013.

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