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Summary of NLRB Decisions for Week of November 28 - December 2, 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

Alton H. Piester, LLC (11-CA-21531; 357 NLRB 116) Newberry, SC, November 28, 2011.

In this compliance case, the Board affirmed the Administrative Law Judge’s rulings, findings and conclusion that the discriminatee was owed backpay for the entire backpay period alleged by the Acting General Counsel.  The Board agreed with the judge that but for the Respondent’s unlawful discrimination, the discriminatee would have worked throughout the backpay period.

Charge filed by an Individual. Administrative Law Judge Mary Miller Cracraft issued her decision on December 30, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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IFG-Stockton Management, L.P. (32-CA-24926; 357 NLRB No. 118) Stockton, CA, November 30, 2011.

The Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition, refusing to bargain, unilaterally eliminating all bargaining unit positions, and by telling the union that it would not bargain.  The Board also found that the Respondent’s elimination of all bargaining unit positions violated Section 8(a)(3); the Respondent violated Section 8(a)(3), (5) and (1) by placing an employee on administrative leave; and violated Section 8(a)(1) by directing an employee not to discuss collective bargaining and employment matters with other employees.

Charge filed by International Union of Operating Engineers, Stationary Engineers, Local 39, AFL-CIO.  Administrative Law Judge Jay R. Pollack issued his decision on August 19, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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South Jersey Sanitation Corporation (04-CA-37537; 357 NLRB No. 124) Hammonton, NJ, November 30, 2011.

The Board adopted the Administrative Law Judge’s findings that the Respondent, a trash collection and recycling business, violated Section 8(a)(1) of the Act by interrogating and threatening an employee in relation to union activity; promising and granting him a raise to dissuade such activity; creating the impression of, and engaging in surveillance of his and other employees’ union activities; threatening employees with the sale of its business; and promising its employees improved health benefits.  The Board also adopted the judge’s findings that the Respondent violated Section 8(a)(3) and (1) by discharging the same employee for his union activities.  Finally, the Board majority adopted the judge’s findings that the Respondent violated Section 8(a)(4) and (1) by discharging that employee for agreeing to testify in a Board hearing, with Member Hayes finding insufficient evidence to support a violation of Section 8(a)(4) and (1).

The charge was filed by Teamsters, Local 115 a/w International Brotherhood of Teamsters.  Administrative Law Judge Robert A. Giannasi issued his decision on March 7, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Grane Healthcare Co. and/or Ebensburg Care Center LLC d/b/a Cambria Care Center, a single employer (6-CA-36791, et al.;357 NLRB No. 123) Ebensburg, PA, November 30, 2011.

The Board adopted the Administrative Law Judge’s decision in this Burns successorship case. The judge found that (1) Respondents Grane Healthcare and Cambria Care Center constitute a single employer; (2) as a single employer, the Respondent violated Section 8(a)(5) of the Act by refusing to recognize Laborers, Local 1305 as the collective-bargaining representative of a unit of non-professional health-care employees, most of whom were hired from the predecessor employer’s work force; (3) the Respondent did not violate Section 8(a)(5) by refusing to recognize SEIU Healthcare Pennsylvania as the collective-bargaining representative of a unit of nursing employees, also hired largely from the predecessor’s work force; and (4) it violated Section 8(a)(3) by refusing to hire five of the predecessor’s employees.

The most significant underlying fact in the Burns successorship issues was the predecessor nursing home’s status as a public sector employer in the state of Pennsylvania.  In affirming the judge’s conclusion that the Respondent did not unlawfully refuse to recognize SEIU, the Board noted that the Acting General Counsel’s unsuccessful theory of the violation was that SEIU enjoyed a continuing presumption of majority status for purposes of collective bargaining under federal labor law, notwithstanding the limited “meet and discuss” nature of its prior relationship with the predecessor under Pennsylvania labor law.  The Board found it unnecessary to pass on two contentions raised in SEIU’s exceptions, because both of them improperly expanded on the Acting General Counsel’s theory of the alleged violation.  The Board cited Nott Co., 345 NLRB 396, 398 fn. 10 (2005), and Kimtruss Corp., 305 NLRB 710, 711 (1991), in support.

In affirming the judge’s findings that the Respondent violated Section 8(a)(3) by refusing to hire the five predecessor employees, four of whom were officials of Laborers, Local 1305, a Board majority found it unnecessary to rely on the judge’s statement that the Respondent’s disproportionate non-hiring of Local 1305 officials relative to non-officials would be sufficient alone to establish unlawful motivation. Member Hayes stated that he would not rely at all on the evidence of a disproportionate hiring pattern to establish animus; he relied solely on the fact that the Respondent’s explanation for its decision not to hire the five discriminatees was pretextual.

Charges filed by Local 1305, Professional and Public Service Employees of Cambria County a/w the Laborers’ International Union of North America.  Administrative Law Judge David I. Goldman issued his decision on December 16, 2010. Chairman Pearce and Members Becker and Hayes participated.

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Sunrise Mountainview Hospital, Inc. d/b/a Mountainview Hospital (28-CA-23100; 357 NLRB No. 122) Las Vegas, NV, November 30, 2011.

The Board (PBH) short-form adopted the Administrative Law Judge’s finding that the Respondent violated Sections 8(a)(5) and (1) of the Act by deviating from its established holiday staffing policy without bargaining with the union.  The Respondent’s normal policy is to schedule two on-call nurses with one backup on holidays, but on July 5, 2010 (the observed July 4 holiday), the Respondent instead scheduled 4 on-call nurses. 

In a footnote, the Board noted that it does not pass on the judge’s finding that the Respondent also violated Section 8(a)(5) and (1) by unilaterally departing from its established surgical scheduling policy by permitting physicians to schedule elective surgeries on a holiday and, as such, also does not pass on the judge’s definition of “elective” surgery. 

Charge filed by California Nurses Association/National Nurses Organizing Committee (CNA/NNOC).  Administrative Law Judge Lana Parke issued her decision on January 10, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Ozburn-Hessey Logistics, LLC (26-CA-23675 and 26-CA-23734; 357 NLRB No. 125) Memphis, TN, November 30, 2011.

The Board determined that Ozburn-Hessey Logistics, LLC violated Section 8(a)(1) of the Act during a union organizing campaign, by interrogating employees about union activity, asking an employee to persuade others to abandon support of the union, threatening employees with unspecified reprisals, and telling an employee she could not work overtime because of union activity.  The Board further found that Ozburn-Hessey prevented an employee from performing overtime work and terminated a known union organizer in retaliation for their union activity in violation of Section 8(a)(3) and (1).

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.  Administrative Law Judge John H. West issued his decision on December 27, 2010.  Chairman Pearce and Members Becker and Hayes participated. 

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Trinity Protection Services, Inc. (20-CA-34660 et al.; 357 NLRB No. 117) Sacramento, CA, November 30, 2011.

The Board unanimously agreed with the Administrative Law Judge’s finding that the Respondent did not violate Section 8(a)(1) of the Act by discharging three employees who were undergoing training for positions as security guards.  Specifically, assuming,  but without deciding, that the employees engaged in protected concerted activities, the Board agreed with the judge that the Acting General Counsel failed to satisfy his initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), that the Respondent had knowledge of the employees’ activities.  Member Hayes added that he would also adopt the judge’s finding that the Respondent satisfied its Wright Line rebuttal burden of proving that it would have discharged the three employees even absent any protected concerted activities.

Reversing the judge, however, the Board unanimously found that the Respondent’s project manager threatened employees in violation of Section 8(a)(1) by telling them that ‘’ divulging any company knowledge to any client was prohibited by company policy and could result in disciplinary action.’’  In agreeing with his colleagues that this chain-of-command restriction was unlawful,  Member Hayes noted that the project manager did not reference the Respondent’s written chain-of-command policy, which was not alleged as unlawful.

Charges filed by Individuals.  Administrative Law Judge James M. Kennedy issued his decision on October 14, 2010.  Chairman Pearce and Members Becker and Hayes participated.

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Allison Enterprises, Inc. d/b/a Island Beachcomber Hotel (24-CA-11565; 357 NLRB No. 120) St. Thomas, VI, November 29, 2011. 

The Acting General Counsel sought a default judgment in this case on the ground that the Respondent failed to file an answer to the second amended complaint.  The Respondent was ordered to cease and desist from unilaterally canceling the medical insurance plan of the unit employees; 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 United Steelworkers of America, Local 8352.  Chairman Pearce and Members Becker and Hayes participated.

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Salem Hospital Corporation a/k/a the Memorial Hospital of Salem County (4-CA-64455; 357 NLRB No. 119) Salem, NJ, November 29, 2011.

This is a refusal to bargain case in which the Respondent is contesting the union’s certification as bargaining representative in the underlying representation proceeding.  The Respondent was ordered to cease and desist from failing and refusing to recognize and bargain with the union; 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 Health Professionals and Allied Employees (HPAE).  Chairman Pearce and Members Becker and Hayes participated.

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Vocell Bus Company, Inc. (1-CA-46854; 357 NLRB No. 121) Malden, MA, November 29, 2011.

The Acting General Counsel sought a default judgment in this case on the ground that the Respondent failed to file an answer to the complaint.  The Respondent was ordered to cease and desist from discharging employees because they form, join, or assist the union or any other labor organization in concerted activities; 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 an Individual.  Chairman Pearce and Members Becker and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Newark Extended Care (22-RC-13203) Newark, NJ, November 28, 2011.  Decision and certification of representative.  Petitioner – 1199 SEIU, United Healthcare Workers East, New Jersey Region.  Chairman Pearce was recused and did not participate in this matter.  Members Becker and Hayes participated.

The Geist Company (8-RC-17056) Cleveland, OH, December 1, 2011.  Decision and certification of representative.  Petitioner – Sheet Metal Workers International Association, Local 33, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

Heavy Construction Company, Inc. (29-RC-12040 and 29-RC-12045) Springfield Gardens and Queens, NY, December 1, 2011.  Order denying request for review.  Petitioners – Highway Road and Street Construction Laborers Local 1010, Laborers International Union of North America, AFL-CIO and United Plant and Production Workers, Local 175, International Union of Journeymen and Allied Trades.  Chairman Pearce and Members Becker and Hayes participated.

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C Cases

SCC Oakland Cambridge Operating Company, LLC d/b/a Cambridge East Healthcare Center (7‑CA‑43548) Detroit, MI, November 29, 2011.  The Board having considered the decision and the record in light of the exception affirmed the Administrative Law Judge’s rulings, findings, and conclusions and ordered the Respondent to take the action set forth in the order as modified.  Charge filed by an Individual.  Chairman Pearce and Members Becker and Hayes participated.

United States Postal Service (14-CA-30049, et al.) St. Louis, MO, November 29, 2011.  Decision and order pursuant to a settlement stipulation.  Charges filed by National Postal Mail Handlers, Local 314 and Saint Louis Gateway District Area Local, American Postal Workers Union, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

Whitesell Corporation (18-CA-18540, et al.) Washington, IA, November 29, 2011.  Order granting motion for reconsideration.  Charges filed by Glass, Molders, Pottery, Plastics and Allied Workers International, Local 359.  Chairman Pearce and Members Becker and Hayes participated.

Academy Coach Lines (13-CA-60541) Mt. Prospect, IL, November 30, 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 Amalgamated Transit Union, Local 1028.

Ralphs Grocery Company (31-CA-27160, et al.) Los Angeles, CA, November 30, 2011.  Notice to show cause why the Charging Parties’ motions should not be granted.  Charges filed by United Food and Commercial Workers Union, Locals 135, 324, 770, 1036, 1167, 1428 and 1442.

General Die Casters, Inc. (8-CA-63533) Twinsburg, OH, December 2, 2011.  Order denying petition to revoke subpoena duces tecum B-560743.  Charge filed by Teamsters, Local 24.  Chairman Pearce and Members Becker and Hayes participated.

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Appellate Court Decisions

No Appellate Court decisions involving NLRB cases were issued this week.

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Decisions of Administrative Law Judges

UNITE HERE, Local 1 (13-CB-19622; JD-68-11) Chicago, IL.  Charge filed by Ritz Carlton Water Tower Partnership.  Administrative Law Judge Paul Buxbaum issued his decision on November 29, 2011.

Austin Fire Equipment, LLC (15-CA-19697; JD(ATL)-32-11) Prairieville, LA.  Charge filed by Road Sprinkler Fitters, Local 669, U.A., AFL-CIO.  Administrative Law Judge Margaret G. Brakebusch issued her decision on November 29, 2011.

Fort Dearborn Company (13-CA-46331; JD-73-11) Niles, IL.  Charge filed District Council Four, Graphic Communications Conference of the International Brotherhood of Teamsters.  Administrative Law Judge Arthur J. Amchan issued his decision on November 30, 2011.

Nebraskaland, Inc. (2-CA-39996; JD(NY)-46-11) Bronx, NY.  Charge filed by Local 342, United Food and Commercial Workers International Union.  Administrative Law Judge Steven Davis issued his decision on November 30, 2011. 

Rochdale Village, Inc. (29-CA-30406; JD(NY)-47-11) Jamaica, NY.  Charge filed by Liuna Residential Construction & General Service Workers, Local 10.  Administrative Law Judge Eleanor MacDonald issued her decision on December 1, 2011.

All Service Plumbing and Maintenance, Inc. (15-CA-19433, et al.; JD(ATL)-33-11) Baton Rouge, LA.  Charge filed by United Association of Journeymen and Apprentices of the Plumbing Industry of the United States and Canada, Local 198.   Administrative Law Judge Robert A. Ringler issued his decision on December 1, 2011.

Big Ridge, Inc. (14-CA-30379, et al.; JD-74-11) Equality, IL.  Charges filed by United Mine Workers of America.  Administrative Law Judge Jeffrey D. Wedekind issued his decision December 1, 2011.

Local 190, United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (UA) AFL-CIO and Greater Michigan UA Local 190 Joint Training Committee (JTC), joint employers (7-CA-52652; JD-72-11) Ann Arbor, MI.  Charge filed by Local 164, International Brotherhood of Teamsters.  Administrative Law Judge Earl E. Shamwell, Jr. issued his decision December 2, 2011.

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