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Summary of NLRB Decisions for Week of November 14-18, 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

Flat Rate Movers, Ltd. (02-CA-39373 et al.;357 NLRB No. 112) Bronx, NY, November 16, 2011.

The Respondent operates a residential and commercial moving company headquartered in Brooklyn, NY.  Following a union election on August 14, 2009, the tally of ballots showed 67 votes for the Union and 85 votes against the Union, with 95 challenged ballots, a number sufficient to affect the election’s outcome.  The Board sustained the challenges to 57 ballots cast by seasonal employees because they did not have a reasonable expectation of future employment with the Respondent.  The Board further found that the Respondent unlawfully discharged 40 employees in July 2009, and thus the Board overruled challenges to 22 ballots cast by unlawfully discharged employees.  The Board overruled challenges to seven additional ballots, but it found insufficient evidence to rule on challenges to the remaining six ballots.

The Board ordered the Regional Director to open and count the ballots subject to overruled challenges.  If the revised tally shows a majority for the Petitioner and no remaining determinative challenged ballots, then the Petitioner shall be certified as the employees’ representative.  If the revised tally shows that the Petitioner did not receive a majority and there are no remaining determinative challenged ballots, then the election shall be set aside and a new election held.  Finally, if the remaining challenged ballots prove determinative, the Regional Director shall designate a hearing officer to adduce additional evidence to determine whether the remaining six voters were eligible.

Charges filed by Individuals and Retail, Wholesale, and Department Store Union, Local 116.  Administrative Law Judge Raymond P. Green issued his decision on March 7, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Douglas Autotech Corporation (7–CA–51428; 357 NLRB No. 111) Bronson, MI, November 18, 2011.

The Board (Member Hayes dissenting in part) found that the Respondent violated the National Labor Relations Act by discharging approximately 146 employees following an economic strike.  The strike was unlawful due to the union’s failure, before the strike, to file a notice with the Federal Mediation and Conciliation Service, as required by the Act.  Accordingly, the strikers lost their status as “employees” entitled to the protections of the Act.   The Board found, however, that the strikers regained their status as protected employees when the Respondent “reemployed” them by, among other things, locking them out in support of its bargaining position without reserving its rights and repeatedly assuring the union that the former strikers could return to work once the parties reached agreement on a new labor contract.  The Board consequently found that the Respondent violated the Act by subsequently discharging all of the unit employees based on the unlawful strike and refusing to bargain with the union over their terms and conditions of employment. The Board additionally found, under a separate rationale, that the Respondent unlawfully discharged 33 unit employees who did not participate in the strike.  The Board modified the Administrative Law Judge’s recommended reinstatement and backpay remedy to adapt it to the specific circumstances of the case. Dissenting, Member Hayes stated that he would find that the Respondent never “reemployed” the former strikers; that a lockout did not constitute “reemployment” with the meaning of the Act; and that the Board had not previously used the term “reemployed” to describe an employer’s imposition of a lockout.  Therefore, in Member Hayes’ view, they did not regain protected employee status, and the Respondent was privileged to discharge them for their participation in the unlawful strike

Charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, Local 822.  Administrative Law Judge Paul Buxbaum issued his decision on January 5, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Europa Auto Imports, Inc. d/b/a Mercedes-Benz of San Diego (21-CA-63725; 357 NLRB No. 114) San Diego, CA, November 17, 2011.

This is a refusal-to-bargain case in which the Respondent was contesting the union’s certification as bargaining representative.  The Respondent was ordered to cease and desist from failing and refusing to recognize and bargain with the union; failing and refusing to furnish the union with requested information; and in any like or relating manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act.

Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 190.  Chairman Pearce and Members Becker and Hayes participated.

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Premier Investigative Service Agency, LLC (5-CA-35865; 357 NLRB No. 113) Upper Marlboro, MD, November 18, 2011.

The Acting General Counsel sought summary judgment in this case pursuant to the terms of an informal settlement agreement.  The Respondent was ordered to cease and desist from failing and refusing to continue in effect the terms and conditions of the collective-bargaining agreement reached with the union; failing and refusing to provide the union with requested information; and in any like of relating manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act.

Charge filed by National Union of Protective Services Associations (NUPSA).  Chairman Pearce and Members Becker and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

CBS Radio East, Inc. d/b/a WSCR 670 The Score (13-RC-60669) Chicago, IL, November 14, 2011.  No exceptions having been filed to the Hearing Officer’s report, the Board adopted its findings and recommendations and ordering that the election be set aside and a re-run election be conducted.  Petitioner – International Brotherhood of Electrical Workers, Local 1220.

Hanson Aggregates BMC, Inc. (04-RD-002048, et al.) Penns Park, PA, November 14, 2011.  Order affirming the Regional Director’s decision to reinstate the petition in the case.  Petitioner – an Individual.  Chairman Pearce and Members Becker and Hayes participated.

Schmidt Baking Company, Inc. (22-RC-063637) Edison, NJ, November 14, 2011.  Order denying the Employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – Local 701, International Brotherhood of Teamsters.  Chairman Pearce and Members Becker and Hayes participated.

1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation & Nursing Center (22-RC-13139) Bound Brook, NJ, November 16, 2011.  Order denying Employer’s motion for reconsideration.  Petitioner – 1199 SEIU United Healthcare Workers East, New Jersey Region.  Chairman Pearce, who was a member of the panel was recused and did not participate in deciding the merits of the Employer’s motion.  Members Becker and Hayes participated.

Life House Vista Healthcare Center, LLC (21-RC-63591) Vista, CA, November 17, 2011.  Order affirming the Regional Director’s decision and direction of election.  Petitioner – SEIU, Service Employees International Union, CTW, CLC.  Member Becker was a member of the panel but was recused did not participate in deciding the merits of the Employer’s motion.  Chairman Pearce and Member Hayes participate.

1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation & Nursing Center (22-RC-13139) Bound Brook, NJ, November 17, 2011.  Order correcting the attached order denying motion is substituted for the order denying motion issued on 11/16/11.  Petitioner – 1199 SEIU United Healthcare Workers East, New Jersey Region.

Center for Social Change, Inc. (05-RC-065270) Elkridge, MD, November 18, 2011.  Order granting the Employer’s special permission to appeal the Regional Director’s determination to conduct the election by mail ballot and denying the appeal.  Petitioner – Service Employees International Union, Local 500.  Chairman Pearce and Members Becker and Hayes participated. 

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C Cases

1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation and Nursing Center (22-CA-64426) West Bound Brook, NJ, November 14, 2011.  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 1199 SEIU United Healthcare Workers East, New Jersey Region.

American Baptist Homes of the West d/b/a Piedmont Gardena (32-CA-25247, et al.) Oakland, CA, November 16, 2011.  Order granting motion to accept late documents and transferring exceptions and supporting brief to the Board for consideration.  Charges filed by SEIU United Healthcare Workers-West.

The Blackstone, A Renaissance Hotel (13-CA-45089, et al.)  Chicago, IL, November 16, 2011. Order granting motion to remand the proceeding to the Regional Direction for further appropriate action.  Charges filed by UNITE HERE, Local 1.

Fresh & Easy Neighborhood Market, Inc. (21-CA-39649) El Segundo, CA, November 16, 2011.  Order granting Respondent’s motion for special permission to appeal Administrative Law Judge John J. McCarrick’s ruling denying the Respondent’s motion to close the record and the appeal on the merits. Charge filed by United Food and Commercial Workers International Union.  Chairman Pearce and Members Becker and Hayes participated. 

Island Oasis Manufacturing, LLC (3-CA-27996, et al.) Buffalo, NY, November 17, 2011.  Order adopting the Administrative Law Judge’s decisions and ordering the Respondent to take the recommended action.  Charges filed by Bakery, Confectionery, Tobacco Workers & Grain Millers, AFL-CIO, CLC, Local 36G. 

Pantagraph Publishing Co. (33-CA-15798, et al.) Bloomington, IL, November 18, 2011.  Order granting Respondent’s and Charging Party’s joint motion to withdraw unfair labor practice charges.  Charges filed by District Council Four, Graphic Communications Conference of the International Brotherhood of Teamsters.

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Appellate Court Decisions

Grapetree Shores, Inc. d/b/a Divi Carina Bay Resort,24-CA-11101 & 24-CA-10700(reported at 356NLRB No. 47 & 356 NLRB No. 60, respectively) (3d Cir. decided November 16, 2011)

In an unpublished opinion, the Court enforced two Board Decision and Orders that were consolidated for review.  With respect to the first Decision and Order, the Court upheld the Board’s finding that Grapetree Shores, Inc., the operator of a resort in the U.S. Virgin Islands, violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the duly certified collective-bargaining representative of a unit of its employees.  Concerning the second Decision and Order, the Court agreed with the Board that Grapetree violated Section 8(a)(1) of the Act by announcing an improved 401(k) plan two days before the election.

Before the Court, Grapetree defended its refusal to bargain on two grounds, claiming that the Board erred in upholding the voting eligibility of an employee who was on disability leave when the election took place, and in overruling its election objection, which alleged that a prounion employee made threatening remarks the day before the election.  The Court rejected both contentions.  First, the Court found that the Board appropriately applied the bright-line rule, articulated in Red Arrow Freight Lines, Inc., 278 NLRB 965, 965 (1986), that an employee on sick or disability leave “is presumed to continue in such status unless and until the presumption is rebutted by an affirmative showing that the employee has been discharged or has resigned.”  The Court concluded that substantial evidence supported the Board’s finding that Grapetree, by relying on discredited testimony claiming that the employee was terminated before the election, had failed to rebut the presumption.  Addressing Grapetree’s election objection, the Court similarly rejected Grapetree’s attempt to rely on discredited testimony, and concluded that substantial evidence supported the Board’s finding that the prounion employee did not make the alleged threats.

The Court likewise upheld on substantial evidence grounds the Board’s finding that Grapetree violated Section 8(a)(1) of the Act by announcing two days before the election that a new economic development agreement with the U.S. Virgin Islands mandated employer contributions to the employees’ 401(k) plan.  The Court noted with approval the Board’s finding that the timing of the announcement gave rise to a presumptive inference that Grapetree was attempting to coerce employees.  The Court also upheld the Board’s finding that Grapetree did not rebut the inference, as it failed to establish a legitimate business reason for announcing the 401(k) improvement right before the election, rather than at a later date.  Grapetree claimed that it made the announcement when it did because that was when the governor signed the new agreement.  The Court, however, noted the Board’s finding that the governor’s signature was but one of several steps needed before the agreement could be implemented.  In so noting, the Court distinguished Weather Shield of Connecticut, 300 NLRB 93, 96-97 (1990), the principal case on which Grapetree relied.  As the Court explained, in the cited case, the employer was simply announcing future pension benefits to which employees were already automatically entitled.  By contrast, in the case before the Court, at the time Grapetree made its announcement, the details of the new 401(k) benefits had yet to be worked out, and its future implementation was uncertain.

The Court’s opinion is here.

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Decisions of Administrative Law Judges

Verizon New England, Inc. (01-CA-44539, et al.; JD(NY)-43-11) Springfield, MA.  Charges filed by International Brotherhood of Electrical Workers, Local 2324, AFL-CIO.  Administrative Law Judge Joel P. Biblowitz issued his decision on November 15, 2011.

Center City International Trucks, Inc. (9-CA-60153, et al.; JD(ATL)-31-11) Columbus, OH.  Charges filed by International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 54, Local Lodge 1471.  Administrative Law Judge George Carson II issued his decision on November 15, 2011.

WP Company, LLC d/b/a The Washington Post (5-CA-36485, et al.; JD-70-11) Washington, DC.  Charges filed by Washington Mailers’ Union No. 29 Printing, Publishing, and Media Workers Sector of the Communication Workers of America, AFL-CIO.  Administrative Law Judge Bruce D. Rosenstein issued his decision on November 15, 2001.

Brave Electrical Contracting, LLC d/b/a Brave General Contracting, LLC (5-CA-36058, et al.; JD-71-11) Virginia Beach, VA, November 18, 2011.  Charges filed by International Brotherhood of Electrical Workers, Locals 80 and 1340.  Administrative Law Judge Eric M. Fine issued his decision on November 18, 2011.

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