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Summary of NLRB Decisions for Week of Oct. 29 to Nov. 2, 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

 

Crystal Soda Water Company, Inc. (04-CA-038046, 359 NLRB No. 14) Scranton, PA, October 31, 2012.

Order granting the Acting General Counsel’s motion for summary judgment.  Specifically, the Board rejected as immaterial the respondent’s argument that it was unable to pay the amounts owed and ordered the respondent to pay the amounts due plus interest accrued to the date of payment as set forth in the compliance specification.

Charge filed by International Brotherhood of Teamsters, Local 229.  Chairman Pearce and Members Griffin and Block participated.   

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Bebley Enterprises, Inc. (08-CA-038181; 359 NLRB No. 15) Toledo, OH, October 31, 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 amended compliance specification.  The Board deemed the allegations in the amended compliance specification to be admitted as true based on the withdrawal of the respondent’s answer and in the absence of good cause for the respondent’s failure to file an answer. 

Charge filed by International Union of Painters and Allied Trades, AFL-CIO, Local 7 a/w International Union of Painters and Allied Trades.  Chairman Pearce and Members Hayes and Griffin participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

AmeriGuard Security Services, Inc. (05-RC-085844) Fresno, CA, October 31, 2012.  Order granting the petitioner’s request for review of the Regional Director’s decision and order and denying the request in all other respects.  Petitioner – United Security and Police Officers of America (“USPOA”).  Chairman Pearce and Members Hayes and Griffin participated.

Automation Imports of Longwood, Inc. d/b/a Courtesy Honda (12-RC-083701) Sanford, FL, November 1, 2012.  Order denying the employer’s request for review of the Acting Regional Director’s decision and direction of election.  Petitioner – International Association of Machinists and Aerospace Workers, and District 166, AFL-CIO.  Chairman Pearce and Members Hayes and Griffin participated.

Sutter West Bay Hospital d/b/a California Pacific Medical Center (20-UC-076774) Various, CA, November 1, 2012.  Order denying the employer’s and union’s requests for review of the Regional Director’s decision and order.  Union – International Union of Operating Engineers, Stationary Engineers, Local 39.  Chairman Pearce and Members Hayes and Griffin participated.

Confident Care Corp. (22-RC-081077) Paterson, NJ, November 2, 2012.  No exceptions pending, the Board adopted the hearing officer’s findings and recommendation that a decision and certification of results of election be issued.  Petitioner – Local 338, Retail, Wholesale & Department Store Union, United Food and Commercial Workers.

C Cases

HealthBridge Management, LLC; Care Realty, LLC; CareOne, LLC; et al. (34-CA-070823, et al) Wethersfield, CT, October 31, 2012.  Order denying in part and granting in part the petitioners’ request for special permission to appeal the administrative law judge’s ruling denying their petitions to revoke the Acting General Counsel’s subpoenas duces tecum.  Charges filed by New England Health Care Employees Union, District 1199, SEIU, AFL-CIO.  Chairman Pearce and Members Hayes and Griffin participated.

EchoStar Technologies, L.L.C. (27-CA-066726) Englewood, CO, November 1, 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.  Charge filed by an individual.

American Reclamation, Inc. (31-CA-067258, et al.)  Los Angeles, CA, November 1, 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.  Charges filed by Package and General Utility Drivers, Teamsters, Local 396.

Clarke Manufacturing, Inc. (30-CA-072046) Milwaukee, WI, November 1, 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.  Charge filed by United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union.

Hostess Brands Corporation (01-CA-080461) Biddeford, ME, November 1, 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 Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, Local 334. 

Copper River Grill (10-CA-085934) Boiling Springs, SC, November 2, 2012.  Order denying the employer’s petition to revoke subpoena duces tecum.  Charge filed by an individual.  Chairman Pearce and Members Hayes and Griffin participated.

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Appellate Court Decisions

San Miguel Hospital Corp., Board Case Nos. 28-CA-21896 (reported at 356 NLRB No. 167) and 28-CA-22280 (reported at 357 NLRB No. 36) (D.C. Circuit enforced November 2, 2012)

In a published opinion, the D.C. Circuit denied the petition for review and enforced the Board’s order in this challenge to a union victory in a 2007 election. 

The employer is a Las Vegas, New Mexico hospital.  In 2007, the union petitioned to represent a wall-to-wall unit of all on-site professional and non-professional employees, excluding guards and doctors.  The hospital objected to the unit composition, but the Board rejected the claim.  After the union’s 121-73 victory, the hospital filed 24 objections, all of which the Board overruled; the Board then certified the union as bargaining representative.  The hospital still refused to bargain, and the Board found that the refusal to bargain violated the Act.  After a petition for review and a remand following New Process Steel, the Board reaffirmed its earlier certification, issued a notice to show cause, and ultimately found the hospital’s continuing refusal to bargain unlawful.  This appeal followed. 

Rejecting the hospital’s “blizzard of separate arguments, both substantive and procedural,” the Court enforced the Board’s order.  First, the Court rejected the hospital’s claim that the Board’s health care rules setting forth presumptively appropriate units for acute-care hospitals improperly gave controlling weight to the extent of the union’s organization contrary to Section 9(c)(5) of the Act.  Instead, the Court explained that the Board took many factors into account in devising the rule, and that, even if past union organization was a factor, the Act only prohibits it from “controlling.”  Second, the hospital argued that, even if combining groups of presumptive units together conformed to the language of the health-care rule, the Board was required to make a finding that the combined unit shared a community of interest.   But, before the Board, the hospital “never questioned community of interest (probably because the argument was an obvious loser);” so, the Court declined to reach the argument.  Finally, the Court rebuffed the hospital’s three procedural objections, including a claim that the Board acted too quickly in reissuing its certification following the New Process remand; the Court explained, “[s]uffice it to say that nothing prevented the Board from merely thinking about cases affected by the Supreme Court’s decision in New Process Steel before actual remand orders were issued.”

As the D.C. Circuit ultimately summarized in enforcing the Board’s order: “[T]he Hospital unleashed a blizzard of arguments to challenge the Board’s unfair-labor-practice orders.  It might be appropriate to suggest that in appellate argument, the proverbial rifle is preferable to a machine gun — but that would assume the petitioner had at least a few good arguments; it did not.  In truth, it appears to us that all the Hospital sought was the inevitable delay that review of Board orders affords.  This is regrettable.”

Because a bargaining obligation existed, the Court also enforced a separate Board order finding that the hospital made numerous unilateral changes after the election without negotiating with the union.

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Solutia, Inc., Board Case No. 1-CA-45447 (reported at 357 NLRB No. 15) (1st Cir., decided November 2, 2012)

In a published opinion, the First Circuit enforced the Board’s order in full, rejecting petitions for review from both the employer and union in this refusal-to-bargain case.

Solutia operates two facilities on a single site that, for historical reasons, have been represented by separate unions since 1952.  UFCW Local 414C represented employees at the West Control Lab site and the IUE-CWA Local 288 represented employees at the Saflex Control Lab; the two facilities performed related, but different, work.  In 2008, Solutia began contemplating consolidating some work to the Saflex Control Lab site, which would give Local 288 control over it.  The following year, Solutia informed Local 414C of this plan; in response, Local 414C claimed that Solutia did not enjoy the right to move the work under the parties’ current contract.  Solutia disagreed, and, believing that it would save labor costs, proceeded with its plan.  Rejecting Local 414C’s request for information and bargaining, Solutia informed Local 414C that it believed the consolidation fell within the contract’s management rights clause.  Although the consolidation ultimately cost no Local 414C unit jobs, the Local filed a charge with the Board alleging that Solutia’s unilateral consolidation of work violated Section 8(a)(5) of the Act.  Adopting the judge’s decision, the Board agreed that Solutia unlawfully refused to bargain over the consolidation, but found that it was not an unlawful modification of the scope of the unit or the recognition clause in the collective bargaining agreement.

Receiving petitions for review from both Solutia and Local 414C, the First Circuit affirmed the entirety of the Board’s opinion.  First, deferring to the Board’s finding that the consolidation merely allocated work and did not relocate it, the Court agreed that the consolidation was a mandatory subject of bargaining regardless of whether it turned on labor costs under Westinghouse Electric Corp., 313 NLRB 452 (1993).  Second, the Court upheld the Board’s finding that Local 414C did not waive its right to bargain, either by failing to request bargaining at the time of the decision or through the contract’s management rights clause (which the Court evaluated under its “contract coverage” approach, per Bath Marine Draftsmen’s Ass’n v. NLRB, 475 F.3d 14 (1st Cir. 2007)).  Third, the Court held that, “on the particular facts of this case, there was substantial evidence to support the [Board’s] conclusion that Solutia failed to provide Local 414C with a meaningful opportunity to bargain the effects [of the consolidation],” in addition to the decision.  Next, denying Local 414C's separate petition for review, the Court upheld the Board's finding that the work transfer did not unlawfully modify the scope of the bargaining unit or certain language in the collective bargaining agreement.  Finally, the Court denied both Respondent and Local 414C's challenges to the Board's remedial order, finding many of those attacks on the Board's remedial order premature and the remaining ones without merit.

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Administrative Law Judge Decisions

North American Signs, Inc. (25-CA-074185; JD-61-12) South Bend, IN.  Charge filed by International Brotherhood of Electrical Workers, Local 153, AFL-CIO.  Administrative Law Judge Mark Carissimi issued his decision on November 1, 2012.

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