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Summary of NLRB Decisions for the Week of May 16-20, 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

 

BBHM Management Company d/b/a Moo & Oink, Inc. (13-CA-46129; 356 NLRB No. 156) Chicago, IL, May 18, 2011.

The Board granted the Acting General Counsel’s Motion for Default Judgment on the ground that the Employer failed to file a legally sufficient answer to the complaint pursuant to Section 102.20 of the Board’s Rules and Regulations.  The complaint alleged that the Employer violated Section 8(a)(5) and (1) of the Act by failing to provide the Union with information related to an arbitration award.

Charge filed by United Food & Commercial Workers Union, Local 1546; complaint alleged violations of Section 8(a)(5) and (1).  Chairman Liebman and Members Becker and Pearce participated.

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Pessoa Construction Company (05-CA-34547 et al.; 356 NLRB No. 157) Fairmont Heights, MD, May 19, 2011.

The Respondent required two drivers to leave their company trucks at the jobsite rather than driving the trucks from the Respondent's yard to the jobsite each day as they had done previously.  The Board adopted the judge’s finding that the change, as to one of the driver, violated Section 8(a)(3).  The Board majority also adopted the judge’s finding that the same conduct violated Section 8(a)(5) as to both drivers.  Member Hayes found it unnecessary to pass on the finding that the change violated Section 8(a)(5),  noting that although the complaint does not contain a Section 8(a)(3) allegation as to the second driver, the judge found that he was an innocent bystander of the “discriminatorily motivated change,"  and thus was entitled to the same remedy as the first driver. The Board also adopted the judge’s finding that the Respondent violated Section 8(a)(3) by terminating  the first driver.  The Board also adopted the judge’s finding that the Respondent violated Section 8(a)(1) by creating an impression of surveillance. 

The Board  also ordered that the notice to employees be posted in both English and Spanish, and reject the General Counsel’s exception to the judge’s failure to order that the notice be physically posted at all of the Respondent’s jobsites.

The charges were filed by the Laborers’ International Union of North America.  Administrative Law Judge Arthur J. Amchan issued his decision on January 26, 2010.  Chairman Liebman and Members Pearce and Hayes participated.

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Utility Workers Union of America, AFL-CIO (UWUA); International Chemical Workers Union Council-UFCW (ICWUC); and The UWUA-ICWUC Joint Steering Committee (JSC) (Southern California Gas Company) (21-CB-14820; 356 NLRB No. 158) Los Angeles, CA, May 19, 2011.

The Board (Members Becker, Pearce and Hayes) adopted the judge’s findings, to which there were no exceptions, that the Respondents -- Utility Workers Union of America, AFL-CIO (UWUA), International Chemical Workers Union Council-UFCW (ICWUC), and UWUA-ICWUC Joint Steering Committee (JSC) – violated Section 8(b)(3) of the Act by failing and refusing to sign the collective-bargaining agreement to which they had agreed and then by delaying in signing the agreement.  The Acting General Counsel excepted (1) to the judge’s failure to provide for electronic posting as provided for in J. Picini Flooring, 356 NLRB No. 9 (2010); (2) to her limiting of the notice posting to the Respondents’ offices and union halls in Los Angeles, California; and (3) to her failure to order notice posting at the Respondents’ headquarters outside Los Angeles and at the offices and union halls of the local unions that comprise the JSC.  Denying the Respondents’ motions to dismiss the limited exceptions and, having considered the arguments raised in the motions as if they were presented in answering briefs to the exceptions, the Board modified the judge’s recommended Order to provide for the posting of the notice in accord with Picini Flooring and to provide for the posting of the paper notice at all places where notices to employees and members are customarily posted, with the geographic scope of the provision to be determined at compliance.  The decision included a personal footnote for Member Hayes stating that he would not require electronic distribution of the notice for the reasons set out in his dissent in Picini Flooring

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Decisions of Administrative Law Judges

MRC Carpenters Union Local 2012 (Forcine Concrete & Construction Co., Inc.) (04-CB-10520; JD-30-11) Malvern, PA. Charge filed by Forcine Concrete & Construction Co., Inc. Administrative Law Judge Arthur J. Amchan issued his decision on May 18, 2011.

Wismarq Valencia, LLC (06-CA-37082) Erratum, May 19, 2011.

 

Appellate Court Decisions

NLRB v. E.A. Sween Corp. (13-CA-45563& 7th Cir. 10-3639), May 16, 2011

In a published opinion, the Seventh Circuit enforced the Board's order in this technical 8(a)(5) case, agreeing with the Board that the employer unlawfully refused to bargain with the union following the union's victory in a Board-conducted representation election held in August 2008.  This case was originally before the Court as a two-member decision, and returned after the Board issued a new order in December 2010. 

The day before the election, the union distributed a flyer stating that "[t]he United States Supreme [Court] has held that all existing terms and conditions of employment by law must remain the same until and during contract negotiations or approved by employees," and informing employees that they were entitled to any scheduled raises.  The employer contended that the flyer went beyond the sort of campaign propaganda that is permissible under Midland National Life Ins. Co., 263 NLRB 127, 133 (1982).  In the employer’s view, the flyer was either a forgery, or a deception so artful as to require an exception to Midland’s general rule leaving it to the voters to assess for themselves any misleading statements that may be made during the course of a campaign.  Rejecting the Company's arguments, the Court concluded that no reasonable voter would think that the flyer was an official Supreme Court document, and that the portions of the statement that were misleading did not justify setting aside the election.

 

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Leslie Phares Electric LLC (09-RC-18344) May 17, 2011. Decision and certification of representative.

Amazing Light Electrical Contracting LLC (28-RC-06739) May 17, 2011. Decision and direction of second election.

Caliber Motors, Inc., d/b/a Mercedes Benz of Anaheim (21-RC-21275) May 18, 2011. Order denying request for review.

Lutheran Medical Center (29-UC-00574) May 18, 2011. Order denying request for review.

Steward Carney Hospital, Inc. (01-RC-22525) May 18, 2011. Order denying request for review.

NTN Bower Corporation (10-RD-01504) May 20, 2011. Order denying request for review.

U.S. Foodservice, Inc. (28-RD-00988) May 20, 2011. Order denying request for review.

RML Specialty Hospital (13-RD-02670) May 20, 2011. Order granting motion to withdraw.

C Cases

McCallum Theatre (21-CA-39618) May 16, 2011. Order denying petition to revoke subpoena duces tecum B-631135.

International Union of Operating Engineers, Local 302 (19-CA-32298 et al.) May 17, 2011. Order adopting Respondent to take action.

John Succi Contracting, Inc. (04-CA-36427) May 17, 2011. Revised notice to show cause. Briefs are due on or before 5/31/11.

D.R. Horton, Inc. (12-CA-25764) May 18, 2011. Order granting motion to file amicus briefs.

Independence Residences, Inc. (29-CA-26042 et al.) May 19, 2011. Order denying motion to dismiss.

Insulation Maintenance & Contracting, LLC (28-CA-23198 et al.) May 19, 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 June 2, 2011.

Capital Iron Works Company (17-CA-24499) May 19, 2011. Revised notice to how cause. Briefs due on or before June 2, 2011.

Atlas Crane & Rigging, Inc. and Westar Trucking as a single employer (31-CA-30111) May 19, 2011. Order denying petitions to revoke subpoenas.

Oshkosh Corporation (30-CA-18716) May 20, 2011. Order adopting and dismissing complaint.

Rogan Brothers Sanitation, Inc. (02-CA-40028) May 20, 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 June 3, 2011.

D.R. Horton, Inc. (12-CA-25764) May 20, 2011. Granting motion to file a supplemental brief.

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