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Summary of NLRB Decisions for the Week of March 28-April 1, 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

Jury’s Boston Hotel (01-RD-02081; 356 NLRB No. 114) Boston MA, March 28, 2011.

The Board found that the Employer maintained three objectionable rules in its employee handbook during the critical period before the election, and that the election result (46 for the Union, 47 against) should therefore be overturned.  The majority relied on the employer’s rules against solicitation, “loitering,” and the wearing of emblems and buttons, which were maintained (though not enforced), during the critical period.  Member Pearce also relied on three additional handbook rules involving the Employer’s grievance procedure, internal investigations, and leaving work without authorization.  The majority distinguished Delta Brands, 344 NLRB 252 (2005), and Safeway, Inc., 338 NLRB 525 (2002), from this case on factual grounds.  Member Hayes dissented, finding that none of the Employer’s rules could reasonably have affected the election. 

The hearing officer issued his report and recommendations on February 28, 2007.  The objections to the election were filed by UNITE HERE, Local 26.  Chairman Liebman and Members Pearce and Hayes participated.

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Terry Machine Company, Division of S.P.S. Technologies(07-RC-21581; 356 NLRB No. 120) Waterford, MI, March 28, 2011.

The Board (Member Hayes dissenting) overruled the Employer’s objections to an election and reaffirmed a prior Board certification of the Union. For the purposes of the decision, the Board assumed without deciding that the Employer’s 11 area coordinators are statutory supervisors. Applying Harborside Healthcare, 343 NLRB 906 (2004), the Board reversed the hearing officer to find that the impact of the prounion conduct of 7 of the area coordinators, specifically the solicitation of signatures for two prounion petitions, was mitigated by the Employer’s conduct and did not materially affect the election‘s results.  The Board emphasized the Employer’s explicit disavowal of the area coordinators’ support for the Union to all employees, and the Employer’s threat to terminate the area coordinators for their prounion conduct. The Board stated that the age of the case was regrettable—it had been twice remanded due to changes in applicable law—but overturning the results based on delay would frustrate employees’ previously expressed choice. Dissenting, Member Hayes would not find that the Employer’s lawful campaign mitigated the coercive impact of the area coordinators’ prounion conduct. He additionally found that, due to the passage of time, the election was no longer a reliable indicator of current employees’ choice on the issue of representation, and the only way to protect employee rights was to direct a new election.

Chairman Liebman and Members Pearce and Hayes participated. Petitioner—International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, and its Local 155.

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J.J. Cassone Bakery, Inc. (02-CA-32559-SS, et al.; 356 NLRB No. 122) Portchester, NY, March 30, 2011.

In this compliance case, the Board found that four of the five discriminatees engaged in a reasonably diligent search for work between their illegal discharges and offers of reinstatement.  The Board similarly found that the fifth discriminatee engaged in a reasonably diligent search for work during his illegal suspension.  The Board also made a number of corrections to the administrative law judge’s calculations of the amounts owed to three of the discriminatees. 

The charges were filed by Bakery, Confectionary and Tobacco Workers & Grain Millers Union, Local 3, and an individual.  Administrative Law Judge Raymond P. Green issued his second supplemental decision on September 7, 2010.  Chairman Liebman and Members Becker and Pearce participated.

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Structural Steel and Bridge Painters Local Union 806 02-CD-01162; 356 NLRB No. 123) New York, NY, March 30, 2011.

The Board in this Decision and Determination of Dispute under Section 10(k) of the Act decided that employees represented by Structural Steel and Bridge Painters Local Union 806 rather than employees represented by the Laborers were entitled to perform the disputed work of sealing, including deck sealing, at the Willis Avenue Bridge site in New York, New York.  In making its determination, the Board relied on the factors of collective-bargaining agreements, employer preference and past practice, and economy and efficiency of operations.

Charge filed by Carabie Corporation. Members Becker, Pearce and Hayes participated.

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DaNite Holdings, Ltd. d/b/a DaNite Sign Company (09-CA-45500 et al.; 356 NLRB No. 124) Columbus, OH, March 31, 2011.

The Board adopted the judge’s findings that the Respondent violated the Act by: withdrawing recognition of the Unions; ceasing its contribution to the IBEW pension fund; unilaterally reducing the hours of an employee and changing his wage rate; reviving an employee committee in order to deal directly with its employees and bypass their collective bargaining representative; and directly dealing with an employee with regard to his hours of work and other terms and conditions of his employment (Member Hayes found it unnecessary to pass). Additionally, the Board adopted the judge’s finding that the Respondent violated the Act by promulgating a rule that prohibited employees from discussing their compensation.  The Board (Member Hayes dissenting) adopted the judge’s finding that the Respondent violated the Act by reinstituting and operating an employee committee.

Charges filed by Sheet Metal Workers Local 24.  Administrative Law Judge Arthur J. Amchan issued his decision on August 9, 2010.  Chairman Liebman, Members Pearce, and Hayes participated.

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Douglas R. Wilbur, Inc. d/b/a DRW Electric Inc. (07-CA-52789; 356 NLRB No. 121) Whitmore Lake and Ann Arbor, MI, March 31, 2011.

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondents’ failure to file an answer to the consolidated amended complaint, Respondent DRW’s failure to file an answer to prior complaints, and the withdrawal of Respondent Brookeside’s answers to prior complaints; and in the absence of good cause being shown for the failure to file an answer to the consolidated amended complaint, and deeming the allegations in the consolidated amended complaint to be admitted as true.

Charge filed by International Brotherhood of Electrical Workers, Local 252.  Chairman Liebman and Members Becker and Hayes participated.

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Embarq Corporation(28-CA-22019 et al.; 356 NLRB No. 125) Las Vegas, NV, March 31, 2011.

The Board found that the Respondent did not violate the Act by refusing to bargain with the Union over its decision to close its call center and relocate that work to another call center.  In so finding, the Board held that the case is properly analyzed under Dubuque Packing Co., 303 NLRB 386 (1991), enfd. in pert. part 1 F.3d 24 (D.C. Cir. 1993), cert. denied 511 U.S. 1138 (1994).  The Board also affirmed the judge’s findings that the Respondent did not violate the Act by refusing to furnish information requested by the Union related to that decision, but did violate the Act by refusing to bargain with the Union over the effects of that decision, and refusing to furnish information requested by the Union related to the effects of that decision. Chairman Liebman concurred, stating that she would be open to modifying the Dubuque Packing framework in future cases in connection with union requests for information.

The charges were filed by the International Brotherhood of Electrical Workers Local Union 396.  Administrative Law Judge Gregory Z. Meyerson issued his decision on February 13, 2009.  Chairman Liebman and Members Becker and Hayes participated. 

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Golden Bridge Restaurant (02-CA-39602 et al.; 356 NLRB No. 78) New York, NY, March 31, 2011. 

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the withdrawal of the Respondent’s answer to the complaint.  The Board’s order indicates that in the absence of an answer, the complaint allegations are deemed to be true and the order includes appropriate remedies for the Respondent’s unfair labor practices.

Charge filed by 318 Restaurant Workers Union.  Chairman Liebman and Members Becker and Hayes participated.

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United Steel, paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC and Local Union 193-G (33-CB-04317; 356 NLRB No. 127) Mt. Zion, IL, March 31, 2011.

The Board agreed with the judge that the General Counsel failed to establish that the Respondent violated Section 8(b)(3) of the Act, as alleged in the complaint, by failing and refusing “to bargain collectively about the Employer’s [PPG’s] proposed changes to the Unit’s economic terms and conditions of employment.”  The alleged violation was based on the Respondent’s declaration, in reliance on a specific term of the expiring contract, that it would only bargain “provisionally” over subjects that PPG failed to present by the first day of bargaining for a new contract, including economic terms.  Although the Respondent made the declaration at the second day of negotiations, the Board found it necessary to examine the totality of the Respondent’s conduct, both at and away from the bargaining table, to determine whether it violated its statutory obligation to bargain in good faith.  In finding that it did not, the Board emphasized that the Respondent met and negotiated with PPG and made concessions during 19 days of bargaining and that there was no evidence that the Respondent’s declaration actually affected negotiations.  The Board also relied on the facts that the Respondent filed a grievance over the issue and that the parties agreed to expedite the grievance procedure as evidence that the Respondent did not take its bargaining position to forestall or indefinitely delay agreement or impasse, as the General Counsel contended.  Finding instead that “the Respondent’s declaration merely preserved a contractual litigation position without affecting its willingness and ability to engage in good-faith negotiations,” the Board concluded that the facts supported a finding that the Respondent engaged in lawful bargaining and dismissed the complaint.

Charges filed by PPG Industries, Inc.  Chairman Liebman and Members Pearce and Hayes participated. Administrative Law Judge Arthur Amchan issued his decision on Nov. 18, 2009

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Fiskardo Estiatorio, Inc. d/b/a Thalassa Restaurant (02-CA-38990 et al.; 356 NLRB No. 129) New York, NY, March 31, 2011.

The Board adopted the judge’s decision finding that the Respondent committed several Section 8(a)(1) violations including threatening employees for termination for engaging in protected concerted activity, coercively interrogating employees about their protected concerted activity, threatening an employee with physical harm for engaging in protected concerted activity, and threatening an employee with arrest, and attempting to have that employee arrested for engaging in protected concerted activity.

Underlying charges filed by Jose Luis Vargas, Diego Diaz De La Vega, Julio Lantigua, Manuel Lizondro, and Sebastian Lopez.  Underlying complaint alleged violations of Section 8(a)(3) and (1).  Hearing at New York, NY, on six days from September 15, 2009 to January 15, 2010.  Administrative Law Judge Eleanor MacDonald issued her decision June 9, 2010.  Chairman Liebman, Member Pearce, and Member Hayes participated.

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Decisions of Administrative Law Judges

Piggly Wiggly Midwest LLC (30-CA-18574 et al.; JD-18-11) Appleton, WI. Charge filed by United Food & Commercial Workers Union Local 1473. Administrative Law Judge David I. Goldman issued his decision on March 28, 2011.

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Relco Locomotives Inc. (18-CA-19175 et al.; JD(SF)-07-11) Albia, IA. Charge filed by Brotherhood of Railroad Signalmen. Administrative Law Judge William L. Schmidt issued his decision on March 28, 2011.

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Demand Electric Inc. (29-CA-30433 et al.; JD(NY)-09-11) Astoria, NY. Charge filed by United Electrical Workers of America, Local 363, IUJAT. Administrative Law Judge Raymond P. Green issued his decision on March 29, 2011.

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Sta of Connecticut, Inc., a wholly owned subsidiary of Student Transportation of America, Inc. (34-CA-12785; JD(ATL)-10-11) Ledyard, CT. Charge filed by Connecticut State Employees Association, Service Employees International Union, Local 2001. Administrative Law Judge Robert A. Ringler issued his decision on March 30, 2011.

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United Nurses and Allied Professionals (Kent Hospital) (01-CB-11135; JD(NY)-11-11) Providence, RI. Charge filed by an individual. Administrative Law Judge Joel P. Biblowitz issued his decision on March 30, 2011.

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National Association of Letter Carriers, Branch 44, AFL-CIO (United States Postal Service) (01-CB-11247; JD-19-11) Laconia, NH. Charge filed by an individual. Administrative Law Judge Paul Bogas issued his decision on April 1, 2011.

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The TM Group, Inc. (07-CA-52730; JD-20-11) Farmington Hills, MI. Charge filed by an individual. Administrative Law Judge Earl E. Shamwell Jr. issued his decision on April 1, 2011.

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International Bridge & Iron Co. (34-CA-12616; JD(ATL)-7-11). Administrative Law Judge Michael A. Marcionese issued his Erratum on March 30, 2011.

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Appellate Court Decisions

NLRB v. CSS Healthcare Services, Inc. (10-CA-37628& 11th Cir. 10-13736) March 30, 2011

In an unpublished opinion, the Eleventh Circuit found that substantial evidence supported the Board’s findings, in agreement with the administrative law judge, that an individual employee was an employee under the Act, not an independent contractor, and that Respondent violated Section 8(a)(1) of the Act by discharging Torley for engaging in protected concerted activities. The court had previously vacated and remanded a two-member Board decision reaching the same result in light of New Process.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Kirkstall, Inc. (02-RC-23547) March 30, 2011. Decision and certification of representative.

Ozark d/b/a O’Reilly Auto Parts (21-RC-21222) March 31, 2011. Decision and certification of representative.

Ghiradelli Chocolate Co. (32-RC-05759). Decision and certification of results of election.

C Cases

Ducci Electrical Contractors (34-CA-12639) March 30, 2011. Order adopting Respondent to take action.

Vegas Valley Food & Beverage, LLC d/b/a Déjà vu Ultra Lounge Fusion (28-CA-23032) March 30, 2011. Order adopting Respondent to take action.

Tortilleria La Poblanita (02-CA-37935) March 30, 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 13, 2011.

DriftwoodHealthcare Center – Santa Cruz (32-CA-25510) March 30, 2011. Order denying petition to revoke subpoenas.

Anthony’s Painting LLC (14-CA-30082) March 31, 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 14, 2011.

 

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