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Summary of NLRB Decisions for Week of May 7-11, 2012

The Summary of NLRB Decisionsis 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

WP Company, LLC d/b/a The Washington Post (5-CA-36485et al.; 358 NLRB No. 40) Washington, DC, May 9, 2012.

The Board unanimously adopted the administrative law judge’s dismissal of the entire complaint.  In the absence of exceptions, the Board adopted the judge’s finding that the respondent did not unilaterally change unit employees’ lunch breaks or assign bargaining unit work to non-unit employees in violation of the Act.  The Board agreed with the judge that a few ambiguous comments by supervisors about compensating employees well for working through lunch did not establish that those supervisors were enticing employees to give up their contractual right to a post-lunch break.  Therefore, the Board also dismissed the allegation that the respondent violated the Act by bypassing the union and dealing directly with employees over the terms and conditions of their employment.

Charges filed by Washington Mailers’ Union No. 29, Printing, Publishing, and Media Workers Sector of the Communications Workers of America, AFL-CIO.  Administrative Law Judge Bruce D. Rosenstein issued his decision on November 15, 2011.  Chairman Pearce and Members Hayes and Griffin participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Case

Call Henry, Inc. (08-RC-072882) Brook Park, OH, May 7, 2012.  Decision and certification of representative.  Petitioner – International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 60.

The Vintage Country Club (21-RC-073752) Indian Wells, CA, May 7, 2012.  Order denying the employer’s request for special permission to appeal.  Petitioner – Laborers’ International Union of North America, Local 1184, AFL-CIO.

Madison Project (31-RC-008882) Santa Monica, CA, May 9, 2012.  Order denying petitioner’s request for review of the Regional Director’s decision and order.  Petitioner – Treasurers & Ticket Sellers, Local 857, I.A.T.S.E., M.P.T.A.A. Members Hayes, Griffin, and Block participated.

ADT Security Services, Inc. (12-RC-071890) Miramar, FL, May 9, 2012.  Order denying employer’s request for review of the Acting Regional Director’s order directing elections.  Petitioner – International Brotherhood of Electrical Workers, Local 349, AFL-CIO.  Members Hayes, Griffin and Flynn participated.

C Cases

Pavers & Road Builders District Council Welfare Fund, Annuity Fund and Apprenticeship and Training Fund (29-CA-029656) Flushing, NY, May 7, 2012.  Order denying union’s request for review of the Acting General Counsel’s decision affirming the Regional Director’s compliance determination.  Charge filed by United Plant & Production Workers, International Union of Journeymen & Allied Trades, Local 175.  Chairman Pearce and Members Flynn and Block participated.

Dixie Electric Membership Corp. (15-CA-019954, 15-UC-061496) Baton Rouge, LA, May 7, 9012.  Order denying charging party’s motion to strike.  Charges filed by International Brotherhood of Electrical Workers, Local 767.

Nexeo Solutions, LLC (13-CA-046694, et al.) Willow Springs, IL, May 7, 2012.  Order denying the Acting General Counsel’s request for special permission to appeal the administrative law judge’s rulings.  Charges filed by Truck Drivers, Oil Drivers, Filling Station and Platform Workers’ Union, Local 705, an affiliate of the International Brotherhood of Teamsters.  Members Griffin, Block and Flynn participated.

Gloria J. Verno d/b/a Joe’s Painting and its alter ego Joe’s Painting, Inc., T & M Painting, Inc., a corporation charged with derivative liability, Joseph P. Verno, an individual charged with personal liability (06-CA-036647) Coal Center, PA, May 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 International Union of Painters and Allied Trades, District Council 57 of Western Pennsylvania, AFL-CIO.

AFL Web Printing (22-CA-029494) Secaucus, NJ, May 10, 2012.  Order adopting the findings and conclusions of the administrative law judge and ordering the respondent to take recommended action.  Charge filed by Amalgamated Lithographers of America, GCC/IBT, Local One-L.

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Appellate Court Decisions

Starbucks Corp., Board Case No. 2-CA-37548 (reported at 355 NLRB No. 135) (2d Circuit decided May 10, 2012)

In a published opinion, the Court granted Starbucks's petition for review of three contested unfair labor practice findings and enforced the Board's cross-application for enforcement of the remaining unchallenged violations. 

The case arose from a campaign by the Industrial Workers of the World (IWW) to organize employees at several of Starbucks' New York stores.  Starbucks conceded, by failing to file exceptions to the administrative law judge’s findings, that it acted unlawfully by prohibiting employees from discussing the IWW while off duty, discriminatorily banning employees from using an employee bulletin board to post information about the IWW and from accessing certain non‑work areas, restricting on‑duty employees from discussing the union while allowing conversations about any other subject, generally prohibiting employees from discussing terms and conditions of employment, and discriminatorily disciplining two employees because of their support for the IWW.  The Court granted the Board's application to enforce these uncontested violations.

Starbucks, however, challenged three other violations and, before the Court, prevailed on them all. 

  • One button policy.  The Court found that Starbucks did not violate the Act by implementing a policy allowing employees to wear only one prounion button on their uniforms. The Court held that, although Starbucks may require employees to wear multiple pins with Starbucks-approved messages, it was "entitled to avoid the distraction from its messages that a number of union buttons would risk."

 

  • Discharge of Employee for Intemperate Outburst.  The Court remanded for the Board to reconsider the portion of its decision finding that Starbucks unlawfully discharged an employee who engaged in a heated and profane disagreement with a manager in the presence of customers.  Specifically, the Court found that the Board had erred in analyzing the facts under the test set forth in Atlantic Steel Co., 245 NLRB 814, 816 (1979), because, in the Court’s view, that test is "is inapplicable to an employee's use of obscenities in the presence of an employer's customers."  Judge Katzmann concurred on this point, but observed that he saw no reason to jettison Atlantic Steel entirely in this context.

 

  • Discharge of Employee for Pretextual Reasons.  Finally, the Court, contrary to the Board, found that Starbucks lawfully discharged another very active union supporter for poor performance and attendance problems.

 The Court's opinion is available here.

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White Motor Sales, Board Case No. 20-CA-35310 (reported at 356 NLRB No. 174) (D.C. Circuit decided May 11, 2012)

In an unpublished opinion, the Court agreed with the Board that the employer unlawfully refused to bargain with a newly certified unit of automotive technicians after the union's victory in a representation election. 

The employer submitted evidence demonstrating the following:  On the morning of the representation election in 2010, a union representative entered the shop floor and began talking with voters.  When the employer asked him to leave the work area, the representative complied, but stood outside the shop floor shouting insults at management and threatening to file charges with the Board and OSHA.  During the pre‑election conference, the representative complained that the shop was filthy, accused the employer's president of responsibility for the conditions, and observed, "no wonder the employees were unhappy and wanted my help."  The Board, assuming that the comments were made, and that they were within employees' earshot, found no basis to conclude that they affected the election results. 

The Court agreed, deciding that the comments: (a) did not constitute a captive audience speech, prohibited in the last 24 hours of a campaign, but instead were merely permissible (if uncivil) spontaneous remarks; (b) did not convey the impression that the employer was powerless to protect its legal rights, given that the representative did leave when the employer told him to do so; and (c) were not threatening to employees such that they created "an environment of tension and coercion as to have had a probable effect on the employees' actions at the polls."  Thus, the Court held that "the Board did not err in concluding that [the employer's] evidence and allegations were insufficient to merit a hearing."  It therefore upheld the Board's finding that the employer had no reason to refuse to bargain after the Board certified the union as the victor in the representation election.

The Court's opinion is available here.

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Trump Plaza Associates, Board Case No. 4-CA-36217 (reported at 356 NLRB No. 53) (D.C. Cir. decided May 11, 2012)

In a published decision, the Court granted the employer's petition for review and remanded this refusal-to-bargain case to the Board for further consideration of the employer's objection to the union's election victory. 

The case arises out of an election among casino dealers at the Trump Plaza Hotel in Atlantic City, in which the dealers selected union representation by a vote of 324 to 149.  Prior to the election, the union encouraged local, state, and federal elected officials to support the campaign, which they did in two ways that the employer complained were objectionable after losing the election. 

First, numerous government officials wrote letters of support, which the union widely circulated among dealers and the public.  The employer argued that these letters gave voters the impression that the Board, as a government agency, supported the union campaign, but the Court disagreed, explaining "[t]he letters distributed by the union here are plainly the opinions of the various officials who wrote them," and accordingly ruled that the distribution of the letters did not invalidate the election results. 

The Court, however, found more merit to the employer’s second objection, which was based on a union rally and "mock card-check ceremony" six days before the election, at which three government officials, including a United States Congressman, signed a document called "certification of majority status."  Without passing on whether the event was objectionable, the Board had found that it could not provide grounds for setting aside the election, given the absence of evidence of wide dissemination and the union's significant margin of victory.  The Court disagreed with respect to the level of dissemination, emphasizing that the event had received substantial media coverage.  Further, the Court faulted the Board for not balancing the dissemination and the severity of objectionable conduct in determining whether the election was unfair.  Thus, the Court remanded to the Board to consider "the severity of the challenged conduct," and then "to reassess the extent of the mock card-check dissemination under [Board] precedent."

The Court's opinion is available here.

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Decisions of Administrative Law Judges

International Association of Machinists and Aerospace Workers District Lodge 160, Local Lodge 289(19-CD-000502, et al.; JD(SF)-22-12) Puget Sound, WA, May 8, 2012.  Charges filed by SSA Marine, Inc.  Administrative Law Judge William G. Kocol issued his decision on May 8, 2012.

Fresh & Green’s of Washington, DC, LLC (05-CA-065595; JD(NY)-15-12) Washington, DC, May 8, 2012.  Charge filed by United Food & Commercial Workers, Local 400.  Administrative Law Judge Joel P. Biblowitz issued his decision on May 8, 2012.

Calhoun Foods, LLC d/b/a Key Food (29-CA-030861, et al; JD(NY)-13-12) South Ozone Park, NY, May 8, 2012.  Charges filed by Retail, Wholesale and Department Store Union, United Food and Commercial Workers, Local 338.  Administrative Law Judge Lauren Esposito issued her decision on May 8, 2012.

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