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Summary of NLRB Decisions for Week of October 1-5, 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

J.A. Croson Company (09-CA-035163, et al., 359 NLRB No. 2) Columbus, OH, September 28, 2012.

The Board found that a non-union contractor committed an unfair labor practice by maintaining a state lawsuit challenging a union contractor’s participation in the union’s job targeting program.  The program collects assessments from union members to subsidize the bids of union contractors in key projects in order to gain more union construction work

The respondent filed lawsuit in Ohio state court asserting that the deduction of assessments from employee wages to fund the job targeting program violated the state’s prevailing wage law.  The Ohio Supreme Court ultimately dismissed the lawsuit, finding that the state claims were preempted by federal labor law and its protection of job targeting programs. 

The Board found that union job targeting programs, including those funded by voluntary deductions from the wages of union members employed on state-funded public works projects, are clearly protected under Section 7 of the Act as a means to preserve and expand employment opportunities for represented employees in the construction industry.  The Board further found, in agreement with the Ohio Supreme Court that the state-court lawsuit was preempted by the NLRA and therefore the maintenance of the preempted lawsuit violated the NLRA because it plainly interfered with the protected operation of the job targeting program.  Rejecting the respondent’s argument that a preempted lawsuit is insulated by First Amendment considerations from legal sanction as an unfair labor practice, the Board construed U.S. Supreme Court jurisprudence as placing preempted lawsuits outside of the First Amendment analysis.   

The Board limited remedial relief in this case to an order requiring the respondent to cease and desist and to post a remedial notice.

Member Hayes, in dissent, found that the respondent’s state-court lawsuit targeted only arguably protected conduct because of the unsettled law concerning the operation of job targeting programs.  Member Hayes would find that preemption does not occur with respect to arguably protected conduct until Board involvement in the matter, which did not occur here until after the state court litigation was concluded, and thus that the lawsuit was not in fact preempted.  Assuming arguendo that the respondent’s lawsuit was preempted, Member Hayes would find that even preempted lawsuits are protected by the First Amendment from being condemned as an unfair labor practice where, as here, the respondent reasonably believed that the state-court had jurisdiction to hear its complaint. 

Charges filed by J.A. Guy, Inc. and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 189, AFL-CIO.    Administrative Law Judge Robert A. Giannasi issued his decision on June 27, 2003.  Chairman Pearce and Members Hayes, Griffin, and Block participated. 

***

First Student, Inc. (36-CA-010762, et. al., 359 NLRB No. 12) Molalla, Lake Oswego, and Gresham, OR, September 28, 2012.

The Board adopted the administrative law judge’s finding that the employer unlawfully:  (1) unilaterally departed from its established practice of granting annual salary increases without notice to or bargaining with the union; (2) refused to bargain over economic issues until the parties’ reached agreement on all non-economic issues; (3) refused to meet at reasonable times for bargaining; (4) refused to provide relevant information requested by the union; and (5) made statements that it would not grant expected wage increases and benefit contributions to union employees during contract negotiations.

Charges filed by Oregon School Employees Association.  Administrative Law Judge John J. McCarrick issued his decision on December 7, 2011.  Chairman Pearce and Members Griffin and Block participated.

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Fort Dearborn Company (13-CA-046331, 359 NLRB No. 11) Niles, IL, September 28, 2012.

The Board reversed the administrative law judge and found that the respondent violated the Act by threatening that it was going to watch, catch, and fire a union steward and by suspending the steward because the suspension was part of the respondent’s unlawfully motivated efforts to discharge the steward.  Finally, the Board adopted the judge’s finding that the respondent the Act when it fired the steward about 2 months later.

Charge filed by District Council Four, Graphic Communications Conference of the International Brotherhood of the Teamsters.  Administrative Law Judge Arthur J. Amchan issued his decision on November 30, 2011.  Chairman Pearce and Members Hayes and Block participated.

***

United States Postal Service (34-CA-012912, 359 NLRB No. 4) Mt. Carmel and Hamden, CT, September 28, 2012.

The Board reversed the administrative law judge and found that the respondent violated the Act by failing to timely furnish information related to a grievance filed by the charging party.  In the absence of exceptions, the Board adopted the judge’s finding that the respondent violated the Act by failing to timely furnish information related to a separate grievance.  The Board also adopted the judge’s finding that the respondent did not violate Section 8(a)(5) and (1) of the Act with its delay in furnishing information related to another grievance.  Finally, a Board majority reversed the judge and found that the respondent violated Section 8(a)(5) and (1) by failing to timely furnish information related to four other grievances.  Member Hayes found it unnecessary to pass on these four allegations because they would not affect the remedy.

Charge filed by National Association of Letter Carriers Merged Branch No. 19.  Administrative Law Judge Raymond P. Green issued his decision on April 16, 2012.  Chairman Pearce and Members Hayes and Block participated.

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Contemporary Cars, Inc. d/b/a Mercedes-Benz of Orlando and AutoNation, Inc., single and joint employers (12‑CA‑026126, et al., 358 NLRB No. 163) Maitland, FL, September 28, 2012

The Board adopted the administrative law judge's findings that the respondents violated the Act by: (1) maintaining an unlawfully broad rule prohibiting all solicitation on company property; (2) creating the impression that employees' union activities were under surveillance (Member Hayes dissenting); (3) interrogating employees regarding their union activities; (4) soliciting grievances from employees and impliedly promising to remedy them; and (5) informing employees that their grievances with regard to team leaders had been adjusted by the team leaders’ demotions.   The Board further adopted the judge’s findings that the respondents violated the Act by discharging an employee because of his union activities; and by (1) selecting four technicians for layoff in April 2009; (2) unilaterally suspending skill level reviews and thereby denying promotions to employees who would have been promoted if those reviews had occurred; (3) reducing the specified hours for performing prepaid maintenance work; and (4) refusing to provide the Union with requested information regarding unit employees. Relying onLancaster Fairfield Community Hospital, 311 NLRB 401 (1993), the Board reversed the judge’s dismissal of the allegation that the respondents violated the Act by issuing a documented coaching to an employee because of his union and protected concerted activities (Member Hayes would adopt the judge’s dismissal). 

The Board found it unnecessary to pass on an additional allegation that the respondents unlawfully solicited grievances from employees and impliedly promised to remedy them.  Member Hayes found it unnecessary to pass on additional allegations that the respondents unlawfully interrogated employees. The Board also found it unnecessary to pass on the judge’s dismissal of the allegations that the respondents: (1) unlawfully selected four technicians for layoff in April 2009; and (2) unlawfully interrogated an employee regarding his union activities.  Member Hayes would affirm the judge’s finding that the layoffs of the four technicians were lawful.   In agreeing with his colleagues on a number of the issues, Member Hayes included several personal footnotes. The Board also granted the Acting General Counsel’s request for nationwide posting of the remedial notice for the respondents’ overly broad no solicitation rule.

Charges filed by the International Association of Machinist and Aerospace Workers, AFL‑CIO. Administrative Law Judge George Carson II issued his decision on March 18, 2011. Members Hayes, Griffin, and Block participated.

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Carr Finishing Specialties, Inc. and G.P.C. Construction, Inc. (03-CA-027264, 358 NLRB No. 165) Phelps, NY, September 28, 2012.

The Board adopted the administrative law judge’s findings that respondents Carr and GPC are alter egos, that the union’s unfair labor practice charge was timely filed, and that the respondents, beginning in October 2008, violated the Act by failing to apply the terms of a 2006-2009 collective-bargaining agreement between the Iron Workers Local Union Nos. 33, 9, 440, 6 and 12 (Union) and the Upstate Iron Worker Employers’ Association, Inc. (Association) to unit employees.  The Board reversed the judge and found that the respondents were bound to the 2009-2012 collective-bargaining agreement between the Union and the Association.   Member Hayes dissented on this issue, findingthat the respondents severed their 8(f) relationship with the union at the termination of the 2006-2009 agreement. 

Charge filed by the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers. Administrative Law Judge Bruce D. Rosenstein issued his decision on August 20, 2010.  Chairman Pearce and Members Hayes and Block participated.

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Cofire Paving Corporation (29-CA-027556, 359 NLRB No. 10) Flushing, NY, September 28, 2012.

In this case, a group of employees elected a new union and decertified the union that had represented them for many years. The Board unanimously found that, after the employees changed bargaining representatives, the employer unlawfully reduced their vacation pay without bargaining over the subject with the new union.  The Board also unanimously found that the employer lawfully implementeda new health insurance plan, because it obtained the new union's consent before doing so. 

A Board majority, consisting of Chairman Pearce and Member Griffin, further found that the employer unlawfully pocketed contributions that it had formerly paid on the employees' behalf to pension and annuity funds sponsored by the old union.  They clarified, however, that the employer was not required to pay the contributions directly to the employees after the change in representatives, but rather was obligated to bargain with the new union over what to do with the contributions. 

Dissenting in part, Member Hayes noted that the General Counsel argued to the judge that the employer unlawfully failed to secure equivalent pension and annuity benefits and he did not proceed on the theory of violation adopted by the majority.  Member Hayes stated that he would not reach out and find a violation on a theory that was not alleged or litigated.  He also stated that there was no merit to the majority's theory in any event, inasmuch as the employer could no longer contribute to the pension and annuity funds sponsored by the old union and it satisfied any obligation it had to bargain with the new union over the effects of that development.

Charge filed by Local 175, United Plant and Production Workers.  Administrative Law Judge Raymond P. Green issued his decision on December 5, 2006.  Chairman Pearce and Members Hayes and Griffin participated.

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G&L Associated, Inc. d/b/a USA Fire Protection (10-CA-038074, 358 NLRB No. 162) Clinton, TN, September 28, 2012.

In adopting the administrative law judge’s conclusion that the parties’ relationship was governed by Section 8f) rather than Section 9(a), the Board found that the language of their recognition agreement, on which the union exclusively relied, failed to satisfy the three-part test set forth in Staunton Fuel & Material, Inc., 335 NLRB 717 (2001).  Specifically, the Board found that, under Staunton, the agreement’s statement that “a clear majority of the [unit employees] are members of, and are represented by [the union]” was insufficient to show that the respondent’s recognition of the union was based on majority support among unit employees.  The Board further adopted the judge’s finding that the respondent violated the Act by making unilateral changes in terms and conditions of employment during the term of the parties’ collective-bargaining agreement. 

Charge filed by Road Sprinkler Fitters Local Union No. 669, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO.  Administrative Law Judge Michael A. Marcionese issued his decision on June 21, 2010.  Chairman Pearce and Members Griffin and Block participated.

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Marriott International, Inc. d/b/a J.W. Marriott Los Angeles at L.A. Live (21‑CA‑039556, 359 NLRB No. 8) Los Angeles, CA, September 28, 2012.

The Board agreed with the administrative law judge that the employer violated the Act by maintaining rules prohibiting off-duty employee access to the employer’s facility or use of the employer’s facility without a manager’s permission.  Member Hayes dissented.  He would find that the rules did not violate the Act.

Charge filed by UNITE HERE! Local 11.  Administrative Law Judge Clifford H. Anderson issued his decision on July 22, 2011.  Chairman Pearce and Members Hayes and Block participated.

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Vision of Elk River, Inc. (18-CA-019200, 359 NLRB No. 5) Elk River, MN, September 28, 2012.

The Board found that the employer unlawfully laid off five employees because of their union activities and/or their participation in Board proceedings.  The Board found that the employer knew or suspected that each of the discriminatees supported the union.  In finding that the layoffs were unlawfully motivated, the Board relied in part on statements by high ranking officials indicating that the employer sought to carefully “get rid” of union supporters.  Although those statements were made 2 years before the layoffs, the Board found them to be remarkably revealing declarations of the employer’s intent to surreptitiously commit serious unfair labor practices.  Additionally, the Board found that the employer’s stated reasons for laying off the five discriminatees were pretextual, further evidencing the employer’s unlawful motive.

Dissenting, Member Hayes found that the record failed to show that the employer had knowledge of the union activities of three of the discriminatees.  He further disagreed with the majority’s reliance on the officials’ 2-year-old statements, finding that they were too remote in time to shed light on the motivations behind the layoff decisions.  Finally, Member Hayes found that, while the employer had made some mistakes when evaluating the employees during the layoff process, the record failed to demonstrate that the those mistakes were a pretext for unlawful discrimination. 

Charge filed by an individual.  Administrative Law Judge Richard A. Scully issued his decision on July 7, 2010.  Chairman Pearce and Members Hayes and Block participated.

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Karl Knauz Motors, Inc. d/b/a Knauz BMW (13-CA-046452, 358 NLRB No. 164) Lake Bluff, IL, September 28, 2012.

The Board adopted the administrative law judge’s finding that the respondent auto dealership did not violate the Act by discharging a sales representative for photos and comments that he posted to his Facebook page, because the posts that led to his termination were not protected by the Act. The issue involved Facebook posts about two separate incidents posted to the employee’s account on the same day.  The first post was about a sales event for a new BMW model and included sarcastic remarks and photos about the quality of the food (hot dogs, chips, and bottled water) being served at a marketing event for a luxury automobile.  The second incident involved an accident at an adjacent Land Rover dealership in which a customer’s 13‑year old child had been sitting in the vehicle’s driver’s seat when the vehicle accelerated over the customer’s foot and into a pond while the child was inside.  The employee posted photos and mocking comments about the incident on his Facebook page.  A competitor told the respondent about the posts and the employee was discharged.  The issue was whether the respondent discharged the employee for the sales event postings, the accident postings, or both.  The judge found, and the Board agreed, that the respondent discharged the employee solely for the posts about the accident. Those posts did not amount to protected concerted activity and accordingly the discharge was lawful.  The Board found it unnecessary to pass on whether the Facebook posts concerning the sales event were protected.  This is the first case in which the Board has ruled on an unlawful discharge allegation involving Facebook posts.

The Board also adopted the judge’s finding that a “Courtesy” rule in the employee handbook violated the Act because employees would reasonably believe that it prohibited statements of protest or criticism of the employer, including those protected by the Act.  Dissenting, Member Hayes found that the rule was “nothing more than a common-sense behavioral guideline for employees” and that employees would understand that the rule was intended to maintain civility and decorum in the dealership. The Board also adopted the judge’s unexcepted-to findings that certain other rules violated the Act.  

Charges filed by an individual. Administrative Law Judge Joel P. Biblowitzissued his decision on September 28, 2011. Chairman Pearce and Members Hayes and Block participated.

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General Die Casters, Inc. (08-CA-037932, et al., 359 NLRB No. 7) Peninsula and Twinsburg, OH, September 28, 2012.

The Board affirmed the administrative law judge’s findings that the employer violated the Act by:  (1) ceasing merit-based wage increases and delaying the time of those wage increases; (2) laying off and recalling employees; (3) employing temporary employees while unit employees remained laid-off; (4) requiring employees to reimburse it for health insurance premiums; (5) declaring one-day shutdowns; (6) expanding an existing work rule to prohibit the defacement of company property and discharging an employee because of that expanded rule; (7) implementing a recall procedure, during bargaining, before the parties had reached impasse; (8) refusing to pay an employer for his time spent during an OSHA meeting; (9) threatening employees with plant closure and job loss if the union continued to represent them; (10) through one of its supervisors, soliciting employees to decertify the union and telling an employee that the employer would be more willing to address wage issues if the union were gone; and (11) circulating negotiations updates that encouraged employees to decertify the union.  The Board also affirmed the judge’s findings that the employer’s attorney unlawfully interrogated an employee during a meeting, about this proceeding, because that meeting was involuntary and occurred in the context of the employer’s unlawful activity.

Member Hayes dissented in part, finding that the employer’s prohibition against defacement did not unlawfully expand an existing rule, but rather clarified that existing rule.  He thus found that the employer did not violate the Act when it relied on that rule to discharge an employee.  He also found that the employer was privileged to cease merit-based wage increases because that decision was consistent with its past practice of ceasing wage increases during poor economic circumstances.  Finally, Member Hayes found that the employer did not violate the Act when it required employees to reimburse it for health insurances or when it questioned an employee about this proceeding. 

Charges filed by Teamsters, Local 24 a/w International Brotherhood of Teamsters.  Administrative Law Judge Mark Carissimi issued his decision on May 2, 2011.  Chairman Pearce and Members Hayes and Block participated.

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Federal Security, Inc., and its alter egos or agents, James R. Skrzypek and Janice M. Skrzypek (13‑CA‑038669, 359 NLRB No. 1) Chicago, IL, September 28, 2012.

The Board found that the respondents unlawfully filed and maintained a state court lawsuit alleging that 17 former employees engaged in malicious prosecution and an abuse of process by filing an unfair labor practice charge and providing supporting evidence to the Board.  The Board found that the respondents' state court lawsuit was preempted by the NLRA because it sought to punish and deter resort to the Board’s processes--a right protected by the NLRA.  The majority rejected the argument that the filing of a preempted lawsuit that interfered with rights protected by the NLRA is insulated from legal sanction under the First Amendment's Petitioning Clause. 


Dissenting, Member Hayes noted that the General Counsel had contended only that the lawsuit was baseless and retaliatory and he did not proceed on the theory that the lawsuit was preempted.  Member Hayes stated that he would not reach out and find a violation on a theory that was not alleged or litigated.  He also stated that there was no merit to the majority's theory in any event, inasmuch as the lawsuit was not preempted, and even if it was, the majority's finding of an unfair labor practice based solely on preemption grounds cannot be reconciled with the First Amendment.

Charge filed by an individual.  Administrative Law Judge Robert A. Giannasi issued his decision May 1, 2001. Chairman Pearce and Members Hayes, Griffin, and Block participated.

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Austin Fire Equipment, LLC (15-CA-019697; 359 NLRB No. 3) Prairieville, LA, September 28, 2012.

The Board adopted the administrative law judge’s conclusion that the parties’ relationship was governed by Section 8(f) rather than Section 9(a), because the language of their recognition agreement, on which the Union exclusively relied, failed to satisfy the three-part test to establish 9(a) status set forth in Staunton Fuel & Material, Inc., 335 NLRB 717 (2001).  As it did in USA Fire Protection, 358 NLRB No. 162 (2012), involving the same agreement, the Board found that, under Staunton, the agreement’s statement that “a clear majority of the [unit employees] are members of, and are represented by [the Union]” was insufficient to show that the respondent’s recognition of the union was based on majority support among unit employees.

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.  Chairman Pearce and Members Griffin and Block participated.

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Station Casinos, LLC, Aliante Gaming, LLC, d/b/a Aliante Station Casino & Hotel, Boulder Station, et al. (28‑CA‑022918, et al., 358 NLRB No. 153) Las Vegas, NV, September 28, 2012.

The Board adopted the administrative law judge’s findings ofnumerous violations of the Act that occurred during the union's organizing drive at the employer's many off-strip hotels and casinos in Las Vegas, NV.  The Board also adopted the judge’s findings that the employer violated Section 8(a)(1) and (3) by disciplining, and suspending and discharging several employees for engaging in union activities.  Finally, reversing the judge, the Board found that the employer's Sound Byte Alerts were Section 8(a)(1) threats. 

Charges filed by Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226 and Bartenders Union, Local 165, affiliated with UNITE HERE, AFL-CIO.  Administrative Law Judge Geoffrey Carter issued his decision on September 22, 2011.  Members Hayes, Griffin, and Block participated.


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The Finley Hospital (33-CA-014942, et al., 359 NLRB No. 9) Dubuque, IA, September 28, 2012.

The Board majority (Chairman Pearce and Member Block) adopted the administrative law judge’s finding that the respondent violated the Act by unilaterally discontinuing wage increases provided for in the parties’ collective-bargaining agreement after the agreement expired.  The majority found that although the one-year contract had stated that raises would be given on employees’ anniversary dates “for the duration of this Agreement,” the provision for raises was a term or condition of employment embodying the “dynamic status quo,” and the union had not waived its right to bargain over changes in that provision post-expiration simply by agreeing to the quoted contract language.   Dissenting, Member Hayes would have found that the contract language clearly established that the parties had agreed only to a single wage increase on each employee’s anniversary date during the contract year.  Accordingly, he would have found that the status quo was not one of periodic wage increases, but the wage levels that existed when the contract expired, including raises that had been given during the term of the contract, and therefore that the respondent was not required to adjust those wage levels further post-expiration.

The Board unanimously adopted the judge’s finding that the respondent violated the Act by failing to provide the union with relevant requested information concerning the hospital’s Unit Operations Councils.  The majority also agreed with the judge that the respondent violated the Act by delaying in providing information about instances in which nurses had called off from work because of work-related illness or exposure.  The majority agreed that the call-off information, which pertained to unit employees, was presumptively relevant and that the respondent had explicitly refused to provide it for several months.  Member Hayes dissented.  He would have found that by stating that it did not see the call-off information as relevant either to the parties’ ongoing contract negotiations or to the union’s enforcement of the existing contract, the respondent was seeking clarification of the union’s request, not refusing absolutely to provide the requested information.  Because the union never explained why it needed the information, Member Hayes would not have found the respondent liable for the delay.

The majority further found that the respondent violated Section 8(a)(5) of the Act by failing to make a reasonable attempt to accommodate the union’s request for confidential information -- the names of employees who had complained of a co-worker’s conduct toward themselves and the names of patients’ family members who had complained of the same co-worker’s treatment of patients -- in the context of a grievance over the co-worker’s termination.  The majority adopted the judge’s finding that the respondent never attempted to accommodate the union’s request for the names of complaining employees.  However, it reversed the judge and found that the respondent’s attempt to accommodate the request for names of family members, by offering not to call those individuals as witnesses at an arbitration hearing, was untimely, coming nearly 3 months after the union’s request, and after the discharge grievance had been processed through the pre-arbitration grievance procedure.  The majority reasoned that the union needed the information much earlier, in order to decide whether to proceed with the grievance at all, and to represent the grievant in the grievance procedure once it decided to proceed.  In dissent, Member Hayes would have found that the respondent’s offer to disclose the names of complaining employees before an arbitration hearing was reasonable, given that the union had already been furnished redacted copies of the employees’ statements.  He also would have found that the respondent’s proposal not to call the patients’ family members as witnesses at an arbitration hearing was timely, having been made months before the actual arbitration date.

Charges filed by Service Employees International Union, Local 199.  Administrative Law Judge Ira Sandron issued his decision on April 25, 2007.  Chairman Pearce and Members Hayes and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Heartland Human Services (14-RD-063069) Effingham, IL, September 28, 2012.  Having reviewed the record in light of exceptions and briefs, the Board adopted the hearing officer’s findings and recommendations that the Regional Director open and count ballot.  Petitioner – an individual.  Chairman Pearce and Members Griffin and Block participated.

Ingham County Board of Commissions (07‑WH 084423) Mason, MI, October 3, 2012.  Certification of representative as bona fide under Section 7(b) of the Fair Labor Standards Act of 1938.  Petitioner – Capitol City Lodge 141, Fraternal Order of Police.

Champlin Shores Assisted Living (18-RC-087228) Champlin, MN, October 3, 2012.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Member Hayes dissented: would grant review.  Petitioner – SEIU Healthcare Minnesota.  Chairman Pearce and Members Hayes and Griffin participated.

Standard Parking Corporation (27-RC-085144) Denver, CO, October 3, 2012.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Member Hayes dissented: would grant review in regard to the supervisory status issue.  Petitioner – Teamsters, Local 455.  Chairman Pearce and Members Hayes and Griffin participated.

Yakima Valley Memorial Hospital (19-RC-084190, et al.) Yakima, WA, October 4, 2012.  Decision and order – Having no exceptions filed to the Regional Director’s report, the Board adopted the report’s findings and recommendations and ordered that the proceeding be remanded to the Regional Director for further appropriate action.  Petitioner – Service Employees International Union Healthcare 1199NW.

Payless Shoe Source, Inc. (14-RC-087469) Rolla, MO, October 4, 2012.  Order denying the employer’s request for review of the Acting Regional Director’s decision and direction of election.  Petitioner – United Food and Commercial Workers, Local 655.  Chairman Pearce and Members Hayes and Griffin participated.

Glen Cove Property, LLC d/b/a Glen Cove Mansion Hotel & Conference Center (29‑RC‑078447) Glen Cove, NY, October 5, 2012.  Having no exceptions filed to the Regional Director’s supplemental report, the Board adopted the Regional Director’s findings and recommendations, and found that a certification of representative should be issued.  Petitioner – Local 811, Warehouse Production Sales & Allied Service Employees Union.

C Cases

MasTec North America, Inc., d/b/a MasTec Advanced Technologies (12‑CA‑027071, et al.) Miami, FL, October 2, 2012.  Order adopting the findings and conclusions of the administrative law judge’s decision dismissing in its entirety the consolidated complaint.  Charges filed by International Brotherhood of Electrical Workers, Local 728, AFL-CIO.

Landmark Family Foods, Inc. d/b/a Church Square Supermarket (08‑CA‑037667, et al.) Cleveland, OH, October 2, 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 United Food and Commercial Workers Union, Local 880.

Bebley Enterprises, Inc. (08-CA-038181) Toledo, OH, October 2, 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 Union of Painters and Allied Trades, AFL-CIO, Local 7 a/w International Union of Painters and Allied Trades.

Redburn Tire Company (28-CA-023527, et al.) Phoenix, AZ, October 3, 2012.  Order pursuant to the Board’s rules and regulations, that the above-entitled matter (application for attorney’s fees and brief in support under the Equal Access to Justice Act) be referred to the administrative law judge for appropriate action.  Charges filed by General Teamsters (excluding Mailers), State of Arizona, Local 104, an affiliate of the International Brotherhood of Teamsters.

Classic Fire Protection, LLC and its alter ego, Swift Fire Protection, LLC  (09‑CA 044812, et al.) Louisville, KY, October 3, 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 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 669, AFL-CIO.

Pratt Corrugated Logistics, LLC and Pratt Industries, Inc. (04‑CA‑079603, et al.) Macungie, PA, October 3, 2012.  Order denying Pratt Industries, Inc.’s petition to revoke subpoenas duces tecum and Pratt Corrugated Logistics, LLC’s petition to revoke subpoena duces tecum.  Charges filed by International Brotherhood of Teamsters, Local 773.  Chairman Pearce and Members Griffin and Block participated.

Mohawk Flooring and Janitorial Service, Inc. and Maurice Barnwell, individually (11‑CA‑022379) Spring Lake, NC, October 3, 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 an individual. 

Proud 2 Haul, Inc. (22-CA-069521) Kearny, NJ, October 4, 2012.  Order denying the petition to revoke subpoena duces tecum.  Charge filed by International Brotherhood of Teamsters, NY/NJ Port Division.  Chairman Pearce and Members Griffin and Block participated.

Dispatch Transportation (20-CA-080597, et al.) Yuba City, CA, October 4, 2012.  Order denying the employer’s petitions to revoke subpoena duces tecum.  Charges filed by Teamsters, Local 137.  Chairman Pearce and Members Griffin and Block participated.

United States Postal Service (07-CA-072873) Lansing, MI, October 4, 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 Local 307, National Postal Mail Handlers Union (NPMHU), a Division of Liuna, AFL-CIO.

Service Employees International Union-United Healthcare Workers West (31‑CG‑083421) Burbank, CA, October 4, 2012.  Order denying the union’s petition to revoke subpoena duces tecum.  Charge filed by Providence Health System Southern California d/b/a Providence Saint Joseph Medical Center.  Chairman Pearce and Members Griffin and Block participated.

United States Postal Service (09-CA-061074, et al.) Radcliff, KY, October 5, 2012.  Order that the respondent is to cease and desist from delaying in providing the union with information that is relevant and necessary for it to fulfill its role as the collective-bargaining representative of its unit employees.  Charges filed by American Postal Workers Union, Radcliff, Local 6662, AFL-CIO.  Chairman Pearce and Members Hayes and Griffin participated.

Wallingford’s Favorite Chicken, LLC d/b/a Popeye’s Chicken and Biscuits (34‑CA‑084087) Wallingford, CT, October 5, 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 an individual.

Dispatch Transportation (20-CA-080597, et al.) Yuba City, CA, October 5, 2012.  Order denying the employer’s petitions to revoke subpoenas ad testificandum and subpoena duces tecum.  Charges filed by Teamsters, Local 137.  Chairman Pearce and Members Griffin and Block participated.

United States Postal Service (07-CA-078907) Pontiac, MI, October 5, 2012.  Order that  respondent is to cease and desist from unreasonably delaying in furnishing the local union with relevant requested information, or in any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in the Act.  Charge filed by 480-481 Area Local, American Postal Workers Union (APWU), AFL-CIO.  Chairman Pearce and Members Hayes and Griffin participated.

United States Postal Service (11-CA-076110, et al.) Winston Salem and Raleigh, NC, October 5, 2012.  Pursuant to a formal settlement agreement between the charged party and the Acting General Counsel, the Board ordered the respondent to cease and desist from refusing to bargain collectively and in good faith with American Postal Workers Union, AFL-CIO (Union) as the exclusive bargaining representative of its employees in an appropriate unit by failing and refusing to timely provide information to American Postal Workers Union Winston-Salem, Local 523, and to American Postal Workers Union, Raleigh Cosmopolitan, Local 1078, that is relevant and necessary to the union’s performance of its duties as the exclusive collective-bargaining representative of the bargaining unit employees.  Charges filed by American Postal Workers Union Winston-Salem, Local 523 and American Postal Workers Union, Raleigh Cosmopolitan, Local 1078.  Chairman Pearce and Members Hayes and Griffin participated.

Long Mechanical, Inc. (07-CA-053473, et al.) Northville, MI, October 5, 2012. Pursuant to a formal settlement agreement between the respondent and the Acting General Counsel, the Board issued a decision and order that respondent is to cease and desist from among other things: bypassing the union and dealing directly with the unit employees regarding their terms and conditions of employment; threatening employees with loss of employment and other adverse job consequences if the respondent signed a collective-bargaining agreement with the charging parties; laying off employees because of their sympathies for and activities on behalf of the union; assigning employees less favorable job assignments and depriving them of jobsite equipment because of their sympathies for and activities on behalf of the union; and failing and refusing to bargain collectively and in good faith with the charging parties as the exclusive collective-bargaining representative of the unit with respect to wages, hours, and other terms and conditions of employment in violation of the Act.  Charges filed by Locals 98 and 636, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO.  Chairman Pearce and Members Hayes and Griffin participated.

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Appellate Court Decisions

Lakeland Health Care Associates, LLC, Board Case No. 12‑CA‑27044 (reported at 356 NLRB No. 147) (11th Cir. decided October 2, 2012)

In a published decision, the Court, over a strong dissent, denied enforcement to the Board’s order.  The Board had found that the employer, a Florida nursing home, unlawfully refused to bargain with the union as the representative of its licensed practical nurses (LPNs) after the Board’s January 2011 certification of the union after a Board-conducted election.  The Court agreed with the employer that the LPNs were statutory supervisors not entitled to the Act’s protection, finding, contrary to the Board,  that the LPNs possessed supervisory authority within the meaning of the Act to responsibly direct, assign work to, and discipline certified nursing assistants.   Judge Pryor dissented, charging that the majority “substitute[d] its view of the facts for the contrary finding of the Board,” even though “[o]ur standard of review bars us from reweighing the evidence.” 

The Court’s opinion is available here.

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Administrative Law Judge Decisions

Woodman’s Food Market, Inc. (30-CA-078663; JD-56-12) Appleton, WI.  Charge filed by United Food and Commercial Workers Union, Local 1473.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on October 5, 2012. 

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