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Summary of NLRB Decisions for Week of March 5-9, 2012

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 Decision

Alcan Rolled Products – Ravenswood, LLC (9-CA-46267, 358 NLRB No. 11) Ravenswood, WV, February 27, 2012.

The Board affirmed the administrative law judge’s finding that the employer unlawfully failed to bargain over an accommodation of the union’s interest in receiving requested relevant information and the employer’s interest in maintaining the confidentiality of that information.  The Board also adopted the judge’s recommended order requiring the employer to bargain over an accommodation.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 5668, AFL-CIO-CLC.  Administrative Law Judge David I. Goldman issued his decision on September 12, 2011.  Members Hayes, Griffin, and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Union Carbide Corporation (09-RD-065026) Institute, WV, March 6, 2012.  Order affirming administrative dismissal of the petition.  Petitioner – an individual.  Chairman Pearce and Members Griffin and Flynn participated.

Quality King Distributors, Inc. (29-RD-071819) Deer Park, NY, March 7, 2012.  Order denying employer’s and intervenor’s requests for review of the Regional Director’s decision and direction of election.  Member Griffin, dissented: would have granted review.  Petitioner – an individual.  Chairman Pearce and Members Griffin and Flynn participated.

Pro’s Choice Beauty Care, Inc. (29-RD-071757) Deer Park, NY, March 6, 2012.  Order denying employer’s and the intervenor’s requests for review of the Acting Regional Director’s decision and direction of election.  Member Griffin, dissented: would have granted review.  Petitioner – an individual.  Chairman Pearce and Members Griffin and Flynn participated.

DHP Incorporated, d/b/a Questcare EMS (09-RC-018353) Prestonsburg, KY, March 7, 2012.  Order granting petitioner’s request for review of the Regional Director’s supplemental decision, order and direction of second election.  Petitioner – National Emergency Medical Services Association (NEMSA).  Chairman Pearce and Members Griffin and Flynn participated.

Metro Medical Services, Inc. (14-RC-068236) Loves Park, IL, March 9, 2012.  Decision and certification of results of election.  Petitioner – International Association of EMTS & Paramedics, SEIU/NAGE, Local 5000.

John Peoples Concrete Construction, LLC (17-RC-066797) Overland Park, KS, March 9, 2012.  Decision and direction that the Regional Director open and count ballots.  Petitioner – Carpenters District Council of Greater St. Louis & Vicinity.

C Cases

Kanawha Hospice Care, Inc. (09-CA-063109) Charleston, WV, March 5, 2012.  Order denying respondent’s motions to dismiss, or in alternative, for a stay.  Charge filed by an individual.  Chairman Pearce and Members Hayes and Griffin participated.

NFI and Tri-State Staffing, a joint employer (31-CA-063360, et al.) Chino, CA, March 5, 2012.  Order denying petition to revoke subpoena.  Charges filed by Warehouse Workers United.  Chairman Pearce and Members Hayes and Griffin participated.

UNITE HERE! Local 7, AFL-CIO (SSP, America, Inc.)(05-CB-064466) Lansdowne, MD, March 9, 2012.  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 an individual.

San Gabriel Transit, Inc. (21-CA-039559, et al.) El Monte, CA, March 9, 2012.  Order adopting the findings and conclusions of the administrative law judge’s decision and ordering the respondent to take recommended action.  Charges filed by individuals.

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Appellate Court Decisions

Fresh & Easy Neighborhood Market, Inc., No. 28-CA-22520 (reported at 356 NLRB No. 85) (D.C. Cir. decided March 5, 2012)

In an unpublished judgment, the Court denied the employer's petition for review and enforced the Board's order.

The case arose out of an organizing campaign at the employer's Las Vegas-area grocery stores.  In enforcing the Board's order, the Court first agreed that the employer's nationwide no-distribution policy—which restricted distribution "on Company premises for any purpose"—explicitly restricted Section 7 activity and was thus "presumptively invalid."  Contrary to the employer's claim, it did not cure the violation under Passavant Memorial Area Hospital, 237 NLRB 138 (1978), because its policy revision came after the onset of the organizing campaign and therefore likely chilled employee speech. 

Next, the Court affirmed the Board's findings that a manager both unlawfully interrogated employees and created an impression of surveillance when she asked two workers to write letters complaining to the union about their home visits to employees.  As to the interrogation, the Court recognized that the question's attempt to delve into the employees' union support, the manager's positional authority, and one employee's evasive reaction supported the Board's finding of coercion.  As to the impression of surveillance, the Court endorsed the Board's observation that the request to "write anti-union statements left the employees 'believing that management was watching employees and was interested in knowing whether they had any contacts with the Union.'" 

Finally, the Court enforced the Board's notice-posting remedies.  It reasoned that a corporate-wide notice was appropriate to remedy the employer's unlawful no-distribution policy because the employer had published that policy corporate-wide in its employee handbook and on its intranet site.  Along the same lines, the Board ordered the employer to post notices about the other violations at all of its Las Vegas area stores.  The Court agreed that, "[a]ssuming [the employer] preserved its objection to the area-wide notice...., the Board could reasonably conclude, in view of the Union's area-wide campaign" that posting at all of the Las Vegas area stores was necessary. 

The Court’s opinion is available here.

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Rochelle Waste Disposal, LLC, Board Case No. 33-CA-15298 (reported at 355 NLRB No. 100) (7th Cir. decided March 8, 2012)

In a published opinion, the Court enforced the Board's order in full, agreeing that "the central character in this drama," slip op. at 2, was not a statutory supervisor, and therefore enjoyed the Act's protections when the employer discharged him for his union activity and testimony at a Board hearing. 

As the Court framed the case:  The discriminatee "worked under the title 'Landfill Supervisor,' but as we shall soon have to ask ourselves, 'What's in a name?'"  The employer operates a city landfill in Rochelle, Illinois, employing only five workers.  With two of his coworkers, the discriminatee contacted the union and submitted a petition for representation with the Board.  The employer first claimed that the discriminatee was a statutory supervisor ineligible to vote in the election and, then, after losing that argument after a hearing in which the discriminatee testified, fired him 8 days before the vote.  The Board found the discharge unlawful (and the discriminatee eligible to vote, although that finding was not before the Court).

The Court of Appeals agreed.  First, the Court held that the discriminatee, despite his title, was not a statutory supervisor, rejecting the employer's claim that he responsibly directed other employees.  His job, the Board found, consisted of hauling dirt into the landfill to cover the refuse dumped there each day; to the extent he monitored others' work, it was only to ensure that he could perform his job.  In line with the Board, the Court noted that the employer failed to show that it held the discriminatee accountable for others' performance or that he enjoyed the right to take corrective action against workers who did not perform.  The Court rejected the employer's claim that the Board conflated "corrective action" for the purpose of responsible direction with "disciplinary" action as a separate indicia under 2(11), noting that placing a small burden on the employee to correct his work was not the same as an adverse, disciplinary employment action. 

Next, the Court enforced the Board's finding that the employer discharged the discriminatee to punish his union and Board activity.  The employer claimed that it fired the discriminatee for failing to cover the landfill at the end of a workday, resulting in a fine from the county.  However, when he was discharged, the employer never told the employee that this fine caused his termination; instead, it told the discriminatee that the employer was discharging him due to a slow-down in work.  The post-hoc justification for the discharge supported the Board's finding of animus, according to the Court.  Further bolstering the unlawful motive finding was the timing of the discharge, the fact that the employer had never fired a worker in 37 years until now, and evidence showing that, despite claiming that it laid the discriminatee off due to a slow-down in work, it subsequently hired temporary employees to perform necessary work. 

The Court's opinion is available here

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American Firestop Solutions, Inc., Board Case No. 18-CA-19133 (reported at 356 NLRB No. 71) (8th Circuit decided March 8, 2012)

In a published opinion, the Eighth Circuit upheld the Board's finding that the parties enjoyed a traditional bargaining relationship under Section 9(a), and were not merely parties to a repudiable Section 8(f) pre-hire agreement, and that the employer therefore violated Section 8(a)(5) and (1) of the Act by repudiating that relationship. 

In 2003, the employer and the union signed an agreement in which the employer "agree[d] to recognize [the union] . . . as the exclusive bargaining agent for all employees in the bargaining unit described . . ., as if [the union] had been certified as exclusive representative pursuant to Section 9(a) of the National Labor Relations Act."  In 2009, after a successor contract expired, the employer ended its relationship with the union, claiming that it could lawfully repudiate the bargaining relationship because it was merely a pre-hire agreement under Section 8(f).

The Board, and now the Court, disagreed.  First, the Court affirmed the Board's holding that the 2003 recognition agreement satisfied the three-prong test of Staunton Fuel & Material, 335 NLRB 717 (2001), because its language unequivocally demonstrated that the union requested recognition as majority representative, the employer gave its recognition, and the recognition was based on proof (or an offer of proof) of majority status.  While agreeing with the D.C. Circuit's rulingin Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003), which allows consideration of extra-contractual evidence showing that no majority status actually existed, the Court found that enforcement was warranted in this case because the "ALJ's findings[,] based on [his] credibility determinations[,] provided additional support for [the 9(a) relationship's] existence" beyond the strict language of the agreement.  Lastly, the Court rebuffed arguments claiming that assertedly-vague contract language and an absence of unlawful motive privileged the repudiation, noting that neither the contract language nor the law supported the employer's claims.

The Court's opinion is available here.

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Monmouth Care Center, Board Case No. 22-CA-27287-1 (reported at 356 NLRB No. 29) (D.C. Circuit decided March 9, 2012)

In a published decision, the Court agreed with the Board that three New Jersey nursing homes did not reach impasse in bargaining with the union, and therefore unlawfully implemented their last offers.  The Court denied the nursing homes' petitions for review and enforced in full the Board's order finding that the nursing homes failed to meet and bargain in good faith and provide relevant information.

The three nursing homes all were negotiating new contracts, often with common representatives on both sides of the table.  In each negotiation, a major issue was the use of agency employees, temporary workers who, under the previous contract, were not unit employees and would only become such after working for a year.  The union wanted to decrease their use; the nursing homes wanted to increase it.  In each of the three nursing homes, negotiations were short before the nursing home declared impasse:  (1) Monmouth saw five sessions, and the employer never offered an economic proposal; (2) Milford experienced only three bargaining sessions before the employer imposed its final offer on the union—which, as the Court observed, "was in fact Milford's first offer"; and (3) Pinebrook had six sessions, and, "bargaining had only begun in earnest when Pinebrook declared impasse."  In all cases, the union was moving toward compromise on the agency-employee issue just as the nursing home ended negotiations and never met with the union again. 

Given these facts, the Court upheld the Board's findings that the parties had not reached impasse in any of the three negotiations, and that the nursing homes unlawfully implemented their final proposals and refused to meet for further bargaining.  Further supporting the impasse finding was the fact that the nursing homes never provided the union with information the union requested about, the use of agency employees—that failure was not only an independent violation of the Act, the Court observed, but also "frustrated the parties' efforts to reach agreement and precluded a finding of genuine impasse."  Lastly, the Court rejected the nursing homes' claim that the union was unalterably fixed to certain bargaining proposals, deferring to the Board's credibility determination to the contrary. 

The Court's opinion is available here.

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Roundy's Inc., No. 30-CA-17185 (reported at 356 NLRB No. 27) (7th Circuit decided March 9, 2012)

In a published opinion, the Court enforced the Board's order, upholding the Board's finding that the employer violated the Act by unlawfully ejecting union protestors from the common areas outside of 23 grocery stores without enjoying a state-law property interest to do so. 

In 2005, the Union distributed handbills criticizing the employer, a grocery store chain, for hiring remodeling contractors that did not pay area standard wages.  The employer did not own these stores, but instead leased the properties from various shopping mall owners throughout Milwaukee, Wisconsin, and it enjoyed nonexclusive easements over the parking lots and sidewalks where the union peacefully handbilled.  In some cases, the employer had obligations to help maintain the common areas.  As the Court observed, however, "[n]one of the leases provide [the employer] with explicit authority to eject trespassers or other unwanted parties from the common areas," although one of the employer's managers testified that its stores typically attempt to exclude "undesirable" visitors.

In a thorough opinion, the Court agreed with the Board that the employer violated the Act.  Following from the Supreme Court's decision in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), the Court first recognized that an employer's right to eject nonemployee organizers from their storefronts turns on the employer's state law property right to do so.  Adopting the Board's rule, the Court held that the employer shoulders the burden of proving that it enjoys that right, relying on decisions from several other circuits also affirming the Board's approach.  Then, turning to the case here, the Court examined Wisconsin property law and concluded that holders of a nonexclusive easement do not enjoy exclusionary rights to that property merely because they help maintain it, nor because Wisconsin law gives holders of property interests a cause of action for their breach.  Ultimately, the Court recognized that the question before it asked whether the union "unreasonably interfere[d]" with the employer's use of its nonexclusive easement.  Because "the handbillers were engaged in peaceful conduct protected by Section 7, and there is nothing in the record to show that they were disruptive or that customers were inconvenienced or disconcerted by their presence," the Court found no unreasonable encroachment on the employer's easement and enforced the Board's order.

On a procedural note, the Court agreed that the Board acted within its discretion in remanding the state property law issue to the administrative law judge, who had initially concluded that issue was not within the scope of the General Counsel's complaint.  As the Court explained, the Board was reasonable because proof of an exclusionary property interest is the employer’s  "threshold burden," which the parties did not address originally, and the remand gave the employer an opportunity to fully litigate the issue.  Finally, the Court agreed that the judge properly excluded testimony from a legal expert on Wisconsin property law because it would have "amount[ed] to legal arguments that should be presented to the court in counsel's analysis, not expert opinion testimony."

The Court's opinion is available here.

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Decisions of Administrative Law Judges

International Brotherhood of Teamsters, Local 727 (13-CB-060708, JD-13-12) Chicago, IL.  Charge filed by an individual.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on March 5, 2012.

Jewish Hospital & St. Mary’s Healthcare, Inc. d/b/a Our Lady of Peace (09-CA-066542, JD‑12‑12) Louisville, KY.  Charge filed by AFSCME Council 62, American Federation of State, County and Municipal Employees.  Administrative Law Judge Arthur J. Amchan issued his decision on March 5, 2012. 

TD Barton Foods LLC d/b/a C-Town Supermarket (01-CA-0611241, et al., JD(ATL)-09-12) Pawtucket, RI.  Charges filed by United Food and Commercial Workers Union, Local 328, AFL‑CIO, CLC.  Administrative Law Judge Robert A. Ringler issued his decision on March 7, 2012.

Republic Services, Inc. (25-CA-031683, et al., JD-14-12) Argos, IN.  Charges filed by International Union of Operating Engineers, Local Union 150, AFL-CIO, a/w International Union of Operating Engineers, AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on March 9, 2012.

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