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Summary of NLRB Decisions for Week of November 5-9, 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

Wellington Industries, Inc. (07-UD-000568; 359 NLRB No. 18) Belleville, MI, November 6, 2012.

The Board denied review of the Regional Director’s determination to hold the petition in abeyance pending resolution of outstanding unfair labor practice charges filed against the employer.  The majority, Chairman Pearce and Member Griffin, found that the Regional Director did not abuse his discretion by holding the petition in abeyance where the Board had already found that the employer violated the Act by conditioning bargaining with the union on the absence of UAW Local 174’s president.

Dissenting, Member Hayes stated that reconsideration and substantial limitation of the Board’s general blocking charge policy is warranted.  Further, Member Hayes stated that it would be appropriate to conduct a hearing to address whether there is a causal relationship between the employer’s unfair labor practices and the desire of the petitioning employees to deauthorize the union.

Petitioner – an individual.  Regional Director issued his determination on May 27, 2011.  Chairman Pearce and Members Hayes and Griffin participated.

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E.L.C. Electric, Inc. (25-CA-28283-1 Amended, et al.; 359 NLRB No. 20) Indianapolis, IN, November 8, 2012.

In this compliance case, the respondent, E.L.C. Electric, Inc. (ELC) closed its business operations a few months following the issuance of the Board’s decision in the underlying unfair labor practice proceeding.  The Board adopted the administrative law judge’s findings of several alternative bases for liability for the make-whole provisions in the Board’s Order in light of the demise of ELC.  First, the Board agreed with the judge that ELC was a single employer with Asset Management, Inc., both of which companies were owned by Edward L. Calvert (Calvert), and which companies lacked an arm’s-length relationship normally found among unintegrated companies.  Second, the Board agreed that the corporate veils of both ELC and Asset Management, Inc. should be pierced, in light of Calvert’s gross disregard for the corporate form, and accordingly that Calvert should be found personally liable.  Third, the Board agreed that MERC, Inc. was an alter ego of ELC, because Calvert set up his main assistant at ELC as the head of MERC as a barely disguised continuance of ELC.  Finally, the Board agreed that MERC was a successor to ELC under Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973), because MERC clearly was on notice of the backpay liability of ELC, and MERC continued ELC’s business in basically unchanged form. 

Charges filed by International Brotherhood of Electrical Workers, AFL-CIO.  Administrative Law Judge Ira Sandron issued his supplemental decision and order on December 20, 2011.  Chairman Pearce and Members Hayes and Griffin participated. 

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Kingspan Insulated Panels, Inc. d/b/a Kingspan Benchmark (09-CA-072906, et al., 359 NLRB No. 19) Columbia, OH, November 8, 2012.

The Board specifically overturned the election because the employer unlawfully interrogated two employees, implemented a wage increase for an employee, and a shift differential for the second shift employees during the critical period. 

Charges filed by the Sheet Metal Workers International Association, Local 24.  Administrative Law Judge Arthur J. Amchan issued his decision on June 8, 2012.  Members Griffin, Hayes and Block participated.

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Wallingford’s Favorite Chicken, LLC d/b/a Popeye’s Chicken and Biscuits (34‑CA‑084087, 359 NLRB No. 16) Wallingford, CT, November 8, 2012.

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 Board found that the respondent was in violation of the Act by informing employees that they were discharged because employees complained to the respondent about terms and conditions of employment, discharging or refusing to re-employ employees because they had engaged in protected concerted activities, and to prevent them from engaging in similar conduct in the future, and to discourage employees from engaging in these activities.

Charge filed by an individual.  Chairman Pearce and Members Hayes and Griffin participated.

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Local Lodge S-76 of the International Association of Machinists & Aerospace Workers, DL-I, AFL-CIO  (04-CB-083627, 359 NLRB No. 17) Folsom, NJ, November 8, 2012.

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 Board found that by failing and refusing to execute the contract and failing to respond to the union’s request that it execute the contract, the respondent had been failing and refusing to bargain collectively and in good faith with the employer was in violation of the Act.

Charge filed by South Jersey Energy Service Plus.  Chairman Pearce and Members Hayes and Griffin participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Sylvania Lighting Services Corp. (28-RC-079901) Las Vegas, NV, November 8, 2012.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – International Brotherhood of Electrical Workers, Local 357, affiliated with the International Brotherhood of Electrical Workers.  Chairman Pearce and Members Griffin and Block participated.

Kinney System Incorporated, d/b/a Central Parking System of Massachusetts  (01‑RC‑071163) Boston, MA, November 8, 2012.  Having no exceptions filed, the Board adopted the Acting Regional Director’s findings and recommendations, and found that a certification of representative should be issued.  Petitioner – International Brotherhood of Teamsters, Local 25.

C Cases

Four Points by Sheraton (32-CA-085933) San José, CA, November 6, 2012.  Order denying the employer’s petition to revoke subpoena ad testificandum.  Charge filed by UNITE HERE, Local 19.  Chairman Pearce and Members Hayes and Griffin participated.

Piggly Wiggly Midwest, LLC f/k/a Fresh Brands, LLC  (30-CA-018915, et al.) Sheboygan, Menasha, Oshkosh, Kenosha, Racine, WI, November 7, 2012. 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 United Food and Commercial Workers Union, Local 1473, AFL‑CIO‑CLC.  Chairman Pearce and Members Hayes and Griffin participated.

Valero Services Corporation (16-CA-075476) Port Arthur, TX, November 8, 212.  Having no statement of exceptions filed, the Board adopted the findings and conclusion of the administrative law judge’s decision and ordered that the respondent take the recommended action.

Bayshore Ambulance Company  (20-CA-035598) Sacramento, CA, November 8, 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.  Charge filed by National Emergency Medical Services Association.

LaGuardia Associates, LLP d/b/a Crowne Plaza LaGuardia and LaGuardia Associates, LP a/k/a LaGuardia Plaza Hotel  f/k/a LaGuardia Crowne Plaza Hotel, Debtor-in-Possession (29‑CA‑029347) East Elmhurst, NY, November 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 New York Hotel & Motel Trades Council, AFL-CIO.

Walldesign, Inc. (28-CA-071847, et al.) Las Vegas, NV, November 9, 2012.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.  Charges filed by International Union of Painters and Allied Trades District Council 15, Local 159 affiliated with International Union of Painters and Allied Trades of the United States and Canada (UPAT) AFL-CIO.

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Appellate Court Decisions

Daycon Products Co., Board Case No. 5-CA-35687 (reported at 357 NLRB No. 92) (D.C. Cir. decided November 6, 2012)

In an unpublished opinion, the Court summarily enforced the Board’s September 2011 order against Daycon, a Maryland janitorial supply company.   Daycon employees have been represented by the Drivers, Chauffeurs and Helpers Local Union 639, affiliated with the International Brotherhood of Teamsters, since 1973.  In April 2010, after about 10 negotiating sessions for a new contract, Daycon declared it had reached impasse and implemented its last bargaining offer.  Days later, union employees went on strike because of the unfair labor practice.  They offered to return unconditionally in early July of that year, but Daycon did not reinstate them.

The Court upheld the Board’s findings that Daycon prematurely declared impasse and unlawfully failed to reinstate workers when they offered to return unconditionally to work after striking to protest that declaration. The Court also affirmed the Board’s additional finding that Daycon illegally subcontracted out work without negotiating with the union.  The Board’s court-enforced order requires Daycon to reinstate all striking employees, make them whole for any losses incurred because of the refusal to reinstate them earlier, rescind any changes in working conditions, and resume bargaining.

In enforcing the Board’s order, the Court agreed that “the Board’s findings are supported by substantial evidence in the record.”  It also rejected Daycon’s procedural challenges, including a claim that the Board denied it a fair hearing by issuing a press release summarizing the case following a decision by an administrative law judge.

The Court’s unpublished opinion may be found here.

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Administrative Law Judge Decisions

24 Hour Fitness USA, Inc. (20-CA-035419; JD(SF)‑51‑12) San Ramon, CA.  Charge filed by an individual.  Administrative Law Judge William L. Schmidt issued his decision on November 6, 2012.

Olympic Supply, Inc. d/b/a Onsite News  (05-CA-076019, et al.; JD‑62‑12) Baltimore, MD, November 7, 2012.  Charges filed by UNITE HERE! Local 7.  Administrative Law Judge Michael A. Rosas issued his supplemental decision on November 7, 2012.

Sprain Brook Manor Nursing Home, LLC  (02-CA-040231, et al.; JD(NY)‑35‑12) Scarsdale, NY.  Charges filed by 1199 SEIU United Healthcare Workers East.  Administrative Law Judge Mindy E. Landow issued her decision on November 8, 2012.

Metro-West Ambulance Services, Inc. (36-CA-010801, et al.; JD(SF)‑50‑12) Washington County, OR.  Charges filed by Teamsters Joint Council 37, International Brotherhood of Teamsters.  Administrative Law Judge Eleanor Laws issued her decision on November 9, 2012.

WB Services LLC (04-CA-077889; JD-63-12) Philadelphia, PA.  Charge filed by International Union of Operating Engineers, Local 542, AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on November 9, 2012.

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