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Summary of NLRB Decisions for Week of May 28-31, 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

 

Dover Hospitality Services, Inc., a/k/a Dover Caterers, Inc., a/k/a Dover College Services, Inc., a/k/a Dover Group of New York, a/k/a Dover Group, a/k/a Quick Snack Foods, Inc. (29-CA-063398, 359 NLRB No. 126) Plainview, NY, May 31, 2013.

The Board adopted the administrative law judge’s finding that the respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain collectively and in good faith by failing to provide the union with requested information.  The Board additionally found that the respondent violated Section 8(a)(5) and (1) by failing to respond to the union’s information request in a timely manner.

Charge filed by Retail, Wholesale & Department Store Union, United Food & Commercial Workers Union, Local 1102.  Administrative Law Judge Mindy E. Landow issued her decision on February 22, 2013.  Chairman Pearce and Members Griffin and Block participated.

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Ampersand Publishing, LLC d/b/a  Santa Barbara News-Press (31-CA-028589, et al., 359 NLRB No. 127) Santa Barbara, CA, May 31, 2013.

The respondent filed a motion for reconsideration of the Board’s decision in Santa Barbara News-Press, 358 NLRB No. 141 (2012) (Santa Barbara II).  The motion sought reconsideration of the Board’s order requiring respondent to reimburse the union for its bargaining expenses to remedy the respondent’s unlawful bad-faith bargaining conduct.  The respondent argued that this remedy was not appropriate because neither the Acting General Counsel nor the union requested it from the judge at the hearing, and the judge did not provide for the remedy.  The respondent also argued in its motion that the Board lacked a quorum to issue its Santa Barbara II decision because the President’s recess appointments are constitutionally invalid.  The Board unanimously denied the motion.

Subsequent to the filing of the respondent’s motion, the United States Court of Appeals for the District of Columbia Circuit issued a decision vacating the Board’s decision in Santa Barbara News-Press, 357 NLRB No. 51 (2011)( Santa Barbara I).  Santa Barbara News-Press v. NLRB, 702 F.3d 51 (D.C. Cir. 2012).   In denying the respondent’s motion, the Board found, sua sponte, that the bad-faith bargaining violations found in Santa Barbara II were not affected by the court’s decision, and the several special remedies ordered in its Santa Barbara II decision remain appropriate.  The Board modified its Order, however, to accord with Latino Express, 359 NLRB No. 44 (2012), which issued after its decision.

Charges filed by Graphic Communications Conference/International Brotherhood of Teamsters.  Chairman Pearce and Members Griffin and Block participated.

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Newark Portfolio JV, LLC (22-CA-100534, 359 NLRB No. 124) Newark and Irvington, NJ, May 31, 2013.

In this summary judgment proceeding, the Board found that the respondent had violated the Act, and ordered it to cease and desist, to bargain on request with the union and, if an understanding is reached, to embody the understanding in a signed agreement.

Charge filed by Residential Laborers, Local 55, Laborers International Union of North America.  Chairman Pearce and Members Griffin and Block participated.

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Bellagio, LLC (28-RC-088794, 359 NLRB No. 128) Las Vegas, NV, May 31, 2013

The Board directed a second election.  Contrary to the hearing officer, the Board found, under the totality of the circumstances, that employees in the petitioned-for unit would reasonably believe that a third party acted as an agent of the Union under the doctrine of apparent authority.  The Board disagreed with the hearing officer that a finding of apparent authority necessarily required evidence that the third party spoke on behalf of the Union at a union meeting.  The Board also found that an adverse inference was warranted from the Union’s failure to call the third party as a witness, because the record showed that the third-party was favorably disposed to the Union.  Having found that the third party’s conduct was attributable to the Union, the Board further found that his comments, which threatened unspecified reprisal, affected a sufficient number of voters to have potentially changed the outcome of the election.  Because the third party’s comments warranted setting aside the election, the Board found it unnecessary to pass on the hearing officer’s recommendations concerning other allegations of objectionable conduct.  

Petition filed by International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada Local 720, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated. 

 

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

 

R Cases

 

Allied Medical Transport (12-RD-100505) Pompano Beach, FL, May 28, 2013.  Order denying Allied Medical Transport’s request for review of the Regional Director’s determination to hold the petition in abeyance because it raised no substantial issues warranting reversal.  Petitioner – Transport Workers Union of America, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

 

Suiza Dairy Corporation (24-RC-100527) Juncos, PR, May 29, 2013.  Order denying the employer’s request for review of the Acting Regional Director’s decision and direction of election is it raises no substantial issues warranting review.  Petitioner – Central General De Trabajadores.  Chairman Pearce and Members Griffin and Block participated.

 

Paramedics Plus/Patients Plus (32-RC-102941) Alameda County, CA, May 29, 2013.  The intervenor union sought to appeal the Regional Director’s denial of its request to suspend the processing of a representational petition on the basis that “no-raiding” provisions of its affiliation agreement with the petitioner justified a delay for possible arbitration of the dispute between them.  The Board granted the intervenor union’s request for special permission to appeal, but denied the appeal on the merits.  Petitioner – National Association of Government Employees/SEIU, Local 5000; Intervenor—National Emergency Medical Services Association.  Chairman Pearce and Members Griffin and Block participated.

 

S & H Associates (02-RC-082036) Nanuet, NY, May 29, 2013.  Finding no merit in the employer’s exceptions, the Board adopted the hearing officer’s recommendations that the election be set aside and that a new election be held.  Petitioner – Local 259, United Auto Workers, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

 

Elite Protective Services, Inc. (05-UD-095760) Washington, DC, May 30, 2013.  With no exception having been filed, the Board adopted the hearing officer’s findings and recommendations, and found that a certification of results of election should be issued.  Petitioner – an individual; Union – National Association of Special Police and Security Officers (NASPSO). 

 

PacTell Group, Inc., d/b/a U.S. Fibers (10-RC-101166) Trenton, SC, May 31, 2013.  Order amending the Acting Regional Director’s decision and direction of election to permit four individuals alleged to be supervisors to vote by challenged ballot, but denying the employer’s request for review.  Petitioner – United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7898.  Chairman Pearce and Members Griffin and Block participated.

 

800 River Road Operating Company, LLC d/b/a Woodcrest Health Care Center (22-RC-073078) New Milford, NJ, May 31, 2013.  Order denying motion to reopen the record.  The employer contended that it had newly discovered evidence to support one of the election objections that the Board had overruled in the underlying decision.  The Board found that the employer failed to prove that the evidence was previously unavailable or would have changed the result.  Petitioner – 1199 SEIU, United Healthcare Workers East.  Chairman Pearce and Members Griffin and Block participated.    

 

C Cases

 

Advanced Facial Plastic Surgery Center, PA (16-CA-027886, et al.) Dallas, TX, May 29, 2013.  Order approving a formal settlement stipulation between the parties and specifying actions the employer must take to comply with the National Labor Relations Act.  Charges filed by individuals.  Chairman Pearce and Members Griffin and Block participated.

 

Lintrac Services, Inc. (13-CA-091818) Chicago, IL, May 29, 2013.  Order transferring proceeding to the Board and notice to show cause.  Charges filed by International Brotherhood of Teamsters Local Union No. 710.  Chairman Pearce and Members Griffin and Block participated.

 

Potomac Disposal, Inc. (05-CA-091629, et al.) Gaithersburg, MD, May 31, 2013.  Order granting Acting General Counsel’s request for special permission to appeal Deputy Chief Administrative Law Judge Amchan’s ruling approving a non-Board settlement agreement.  The Board set aside the judge’s approval of the settlement agreement, and remanded the cases to the Regional Director for further processing.  Charges filed by individuals and Construction and General Laborers Local 657, affiliated with Laborers International Union of North America, which is also the petitioner in one of the consolidated cases.  Chairman Pearce and Members Griffin and Block participated.

 

Laborers International Union of North America, Local 177 (Turner Industrial Maintenance), (15-CB-005974) May 31, 2013. Baton Rouge, LA, May 31, 2013.  Order granting in part the Acting General Counsel’s motion to modify the Board’s Order to include language consistent with Latino Express, Inc., 359 NLRB No. 44 (2012).  Charges filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

 

E.L.C. Electric, Inc. (25-CA-028283) Indianapolis, IN, May 31, 2013.  Order granting Acting General Counsel’s motion to modify Board Order to comply with Latino Express, Inc., 359 NLRB No. 44 (2012).  Charges filed by IBEW.  Chairman Pearce and Members Griffin and Block participated.

 

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Appellate Court Decisions

 

Tenneco, Inc., Board Case No. 7-CA-49251 (reported at 357 NLRB No. 84) (D.C. Cir. decided May 28, 2013)

In a published opinion, the Court enforced most of the Board’s unfair labor practices findings, but concluded that Tenneco lawfully withdrew recognition because there was likely no causal connection between the unfair labor practices and the withdrawal. 

The union had represented a unit of approximately 30-40 employees at Tenneco, an auto parts manufacturer, since 1946.  After collective bargaining negotiations failed in Spring 2005, the union began an economic strike.  During the strike, the union permitted one employee to continue working, 10 others crossed the line, and Tenneco hired approximately 15 replacement workers.  Mid-strike, Tenneco required an employee to remove a t-shirt reading “Thou Shall Not Scab,” disciplined him for not willingly complying, and also refused to bargain over the potential implementation of video cameras.  In January 2006, the union made an unconditional offer to return to work, and requested the names and home addresses of the replacement workers whom it now represented.  Tenneco refused to provide the information.  Finally, shortly after the strikers’ return to work, Tenneco held a meeting in which it cautioned employees against engaging in conduct “that is confrontational or meant to evoke a response from a coworker,” and prohibited employees from posting materials in their own work areas.  The following December, Tenneco received a petition signed by 24 of 31 bargaining unit employees seeking withdrawal of recognition from the union, and Tenneco complied.

The Board found that Tenneco violated the Act in numerous ways.  Its demand that the prounion employee remove his t-shirt was coercive under Section 8(a)(1), as were its post-strike restrictions on evocative comments and employee postings.  Its refusal to bargain over the potential installation of video cameras violated Section 8(a)(5).  And, its withholding of the replacements’ home addresses similarly breached its bargaining duty, because the union represented the replacements after strike’s end and there was no “clear and present danger” of the union misusing the information.  Finally, because the Board found a causal link between these unremedied unfair labor practices and the employees’ subsequent loss of support for the union, it held Tenneco’s withdrawal of recognition unlawful as well and ordered it to bargain.

Except for the unlawful withdrawal of recognition, the Court easily enforced the unfair labor practice findings, explaining that “the Board’s decision on these matters speaks for itself and needs no amplification by the court,” because they are “supported by substantial evidence and . . . consistent with established precedent.” 

As to the unlawful withdrawal of recognition, however, the Court granted the petition for review, concluding that substantial evidence did not support the Board’s conclusion that the earlier unfair labor practices likely caused employee disaffection almost a year later.  Applying Master Slack Corp., 271 NLRB 78 (1984), the Court held that, in its opinion, the unfair labor practices were remote in time from the disaffection and were not of the type that had “detrimental or lasting effects.”  Further, according to the Court, the Board did not explain how these specific unfair labor practices affected employees’ morale, which the Court found fatal in light of an ALJ finding that employees were able to discuss unionization freely despite Tenneco’s unlawful acts.  Because the Court found the withdrawal lawful, it refused to enforce the Board’s affirmative bargaining order. 

The Court’s published opinion is available here.

 

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Administrative Law Judge Decisions

 

Ethicon, a Johnson & Johnson Co. (22-CA-089085, JD(ATL)-14-13) Somerville, NJ.  Charge filed by Local 630, New York New Jersey Regional Joint Board, Workers United, SEIU.  Administrative Law Judge William Nelson Cates issued his decision on May 28, 2013.

 

A.E. Frasz, Inc. (13-CA-093123, JD-37-13) Elburn, IL.  Charge filed by International Union of Operating Engineers, Local 150, AFL-CIO.  Administrative Law Judge Geoffrey Carter issued his decision on May 28, 2013.

 

K-Air Corporation (16-CA-091326, JD(NY)-23-13) San Antonio, TX.  Charge filed by Sheet Metal Workers, Local 67, a/w Sheet Metal Workers International Association.  Administrative Law Judge Joel P. Biblowitz issued his decision on May 30, 2013.

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