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Summary of NLRB Decisions for Week of November 19-23, 2012

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

Classic Fire Protection, LLC and its alter ego, Swift Fire Protection, LLC (09‑CA‑044812, et al.; 359 NLRB No. 23) Westerville, OH, November 20, 2012.

Based on the withdrawal of the respondents’ answer and amended answer to the compliance specification and in accord with the parties’ stipulation, the Board deemed the allegations in the compliance specification to be admitted as true, and granted the Acting General Counsel’s motion for default judgment.  Accordingly, the respondents were found liable for remedying the unfair labor practices and were ordered to pay the net backpay owed the discriminatees, plus interest accrued to the date of payment.

Charges filed by United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 669, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

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Bread of Life, LLC d/b/a Panera Bread (07‑CA‑088519; 359 NLRB No. 24) St. Joseph, Kalamazoo, Portage, Battle Creek, Jackson, MI, November 21, 2012.

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

Charge filed by Local 70, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM), AFL-CIO, CLC.  Chairman Pearce and Members Hayes and Griffin participated.

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Dubin Paper Company(04-CA-079713; 359 NLRB No. 25) Philadelphia, PA, November 21, 2012.

Having found that the respondent violated the Act by failing to provide relevant and necessary information requested by the union, the Board ordered the respondent to provide the union with the requested information.

Charge filed by Warehouse Employees, Local 169 a/w International Brotherhood of Teamsters.  Chairman Pearce and Members Hayes and Griffin participated.   

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Vintage Country Club (The) (21-RC-073752) Indian Wells, CA, November 20, 2012.  Order granting the employer’s request for special permission to appeal an appeal from the Regional Director’s report on objections, order consolidating cases and notice of hearing, and denying the appeal on the merits.  Charges filed by Laborers’ Pacific Southwest Regional Organizing Coalition, Laborers’ International Union of North America, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

C Cases

Tate & Hill, Inc. (05-CA-086896) Richmond, VA, November 20, 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 Brotherhood of Electrical Workers, Local 666.

Comau, Inc. (07-CA-052614-E, et al.) Detroit, MI, November 20, 2012.  Having no statement of exceptions filed, the Board adopted the findings, conclusions, and recommended order of the administrative law judge dismissing the respondent union’s application for attorney’s fees and expenses.  Charges filed by Automated Systems Workers Local 1123, affiliated with Carpenters Industrial Council, United Brotherhood of Carpenters and Joiners of America.

Intelliquick Delivery, Inc. (28-CA-082091) Phoenix, AZ, November 20, 2012.  Order denying the petition to revoke subpoena ad testificandum filed by Intelliquick Delivery.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

Hollywood Greyhound Track, Inc.; Hartman and Tyner, Inc.; H & T Gaming, Inc.; and Hollywood Concessions, Inc.; Collectively d/b/a Mardi Gras Casino (12‑CA‑086786)  Hallandale Beach, FL, November 20, 2012.  Order denying Hartman and Tyner, Inc.’s petition to revoke subpoena duces tecum.  Charge filed by UNITE HERE! Local 355.  Chairman Pearce and Members Griffin and Block participated.

Eccles Painting, Inc. (19-CA-069324, et al.) Boise, IA, November 20, 2012.  Having no statement of exceptions filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and ordered the respondent to take recommended action.  Charges filed by Painters District Council 5, affiliated with International Union of Painters and Allied Trades.

Waterstone Mortgage Corporation (30-CA-073190) Pewaukee, WI, November 21, 2012.  Order approving stipulation, granting motion, and transferring proceeding to the Board.  Charge filed by an individual. 

 

Stamford Plaza Hotel & Conference Center, LP (34-CA-013031) Stamford, CT, November 21, 2012.  Having no statement of exceptions filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and ordered the respondent to take the recommended action.

Iroquois Nursing Home, Inc. (03-CA-073221) Syracuse, NY, November 21, 2012.  Having no statement of exceptions filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and the recommended order became the order of the Board.  Charge filed by 1199 SEIU, Healthcare Workers East.

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Appellate Court Decisions

SFO Good-Nite Inn, LLC, Board Case No. 20-CA-32754 (reported at 357 NLRB No. 16) (D.C. Cir. decided November 20, 2012)

In a published opinion, the Court denied the employer’s petition for review, and enforced the Board’s order, upholding the Board’s finding that the employer’s unlawful assistance of a decertification petition conclusively tainted its subsequent withdrawal of recognition. 

During negotiations for a successor agreement in August 2005, employees initiated a decertification effort.  In response, the employer solicited two housekeepers to decertify the union, asked a third to do so during an unannounced home visit, and then told one of the union negotiating committee members to refrain from speaking to coworkers in opposition to decertification.  None of these workers signed the petition.  By early September, the petition garnered a majority of employee signatures, and immediately thereafter, the employer unlawfully discharged the two housekeepers it initially solicited, and then unlawfully coerced another employee to sign the petition and backdate her signature in return for approving a vacation request.  After all this, citing the petition, the employer withdrew recognition from the union. 

The Board found that the solicitations, the attempt to squelch pro-union speech, and the discharges all violated the Act.  Then, applying Hearst Corp., 281 NLRB 764 (1986), the Board held that the pre-petition unlawful-assistance unfair labor practices conclusively tainted the subsequent decertification petition, and, therefore, the withdrawal was unlawful.  Before the Court, while essentially conceding its unfair labor practices, the employer contended that the Board’s conclusive Hearst presumption was untenable because it did not allow the employer to show that the loss of majority status was unrelated to its unlawful acts.  Rather, the employer argued, the Board should have applied the four-factor test of Master Slack Corp., 271 NLRB 78 (1984), to evaluate whether the unfair labor practices affected employees’ decisions to sign the petition. 

Rejecting the employer’s claim, the Court upheld the Board’s test.  It explained that “the Board has ... articulated a clear line for applying the Hearst presumption of taint in ‘the narrow circumstance where an employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify its unilateral withdrawal of recognition from its employees’ representative.’”  In those situations, the foreseeable consequence (and intent) of the employer’s unlawful act is to taint the petition; further, because employees typically tell coworkers when their employer coerces them to sign a decertification petition, no specific proof of dissemination is necessary.  By contrast, the Court explained, the Board reasonably applied Master Slack where “the employer committed unfair labor practices unrelated to the petition that may have contributed to the erosion of support for the union.”  Id.  In those cases, “[a] causal nexus must be shown ... because ‘there is no straight line between the employer’s unfair labor practices and the decertification campaign, and the Master Slack test must be used to draw one, if it exists.’”  Because the Board explained the justifications for applying a conclusive presumption of taint when an employer unlawfully assists a decertification petition, the Court upheld the Board’s Hearst test as “rational and consistent with the Act.”  The Court also rejected a number of the hotel’s related arguments as meritless, as well as its claim that partial compliance with a 10(j) injunction mooted its responsibility to comply with the Board’s Order now. 

The Court’s order is available here.

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Flat Rate Movers, Ltd., Board Case No. 2-CA-39373 (reported at 357 NLRB No. 112) (2d Cir. decided November 21, 2012)

In an unpublished summary order, the Court denied the employer’s petition for review and granted the Board’s application for enforcement in this unlawful discharge and coercion case.

The employer is a Bronx, NY moving company.  After the recession hit in 2008, the company attempted to preserve business by reducing rates, which dramatically affected its employees’ commission-based wages.  As a result, the union began an organizing campaign in the summer of 2009, which the employer quickly discovered.  Immediately, it began asking numerous employees whether they supported the union.  Then, in July 2009, the employer discharged 40 of its approximately 230 movers, purportedly for economic reasons.  Initially, it did not name which employees were being discharged, but called each mover into individual meetings, at which some of them were directly asked whether they preferred their job or the union.  Further, employees were asked to sign a waiver in return for a small sum of money, releasing the employer from liability arising from the discharge, although it was clear that many employees did not understand what they were signing.  At the same time, the employer retained 60 part-time seasonal workers it hired solely for the summer.  And, two months later, it hired 35 new employees, recalling only one of the 40 dischargees. 

On this record, the Board found that the employer violated Section 8(a)(1) of the Act by unlawfullyinterrogatingemployeesabouttheirunion sympathiesandthreateningemployeeswithjoblossinretaliationfor theirunionactivities, and Section 8(a)(3) of the Act by dischargingemployees todiscourageunionization.  Further, theBoardfoundthattheseparationagreements some had signeddidnotprecludetheBoardfromgrantingaremedyto thoseemployees.  The Court enforced the Board’s order in its entirety, rejecting the employer’s challenges to the administrative law judge’s credibility findings, its complaint that it actually began considering layoffs prior to the union’s campaign (although it made no decisions until afterwards), and its plea to enforce the employees’ signed waivers. 

The Court’s unpublished opinion is available here.

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Administrative Law Judge Decisions

Tri-State Metal Works, Inc. (22-CA-072415; JD(NY)-37-12) Wayne, NJ.  Charge filed by Sheet Metal Workers, Local 25.  Administrative Law Judge Steven Fish issued his decision on November 20, 2012.

American Medical Response of Connecticut, Inc. (34-CA-013051, et al.; JD(NY)‑36‑12) West Hartford, CT.  Charges filed by individuals.  Administrative Law Judge Raymond P. Green issued his decision on November 20, 2012.

2 Sisters Food Group Inc., and Fresh & Easy Neighborhood Market, Inc. (21‑CA‑038915, et al.; JD(SF)‑54‑12) Riverside, CA.  Charges filed by United Food and Commercial Workers International Union, Local 1167.  Administrative Law Judge Eleanor Laws issued her supplemental decision on November 21, 2012.

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