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Summary of NLRB Decisions for Week of October 15 - 18, 2013

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

FJC Security Services, Inc.  (22-CA-086863 and 22-RD-083707.; 360 NLRB No. 6Floral Park, NJ, October 18, 2013.

The Board adopted the administrative law judge’s findings that the Employer did not violate the Act by warning employees that approval of their benefit requests was contingent on their support for decertification of the Union, and the judge’s recommendation that the Charging Party/Intervenor’s related objection to the election be overruled and a certification of results of election be issued.  Administrative Law Judge Mindy E. Landow issued her decision on June 12, 2013.  The charge was filed by Protective Security Officers Association.  The petition was filed by two individuals.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No unpublished R cases.

C Cases

Richmond District Neighborhood Center  (20-CA-091748)  San Francisco, CA, October 17, 2013.  The Board denied Richmond District Neighborhood Center’s motion for summary judgment on the grounds that it had failed to establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

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Appellate Court Decisions

Gestamp South Carolina, LLC, Board Case No. 11-CA-22595 (reported at 357 NLRB No. 130) (4th Cir. decided October 16, 2013)

In an unpublished opinion, the Court denied enforcement, vacated, and remanded the Board’s order in the above-captioned case pursuant to in-circuit precedent holding that the President does not have the authority to make recess appointments during intrasession recesses of the Senate.

In a December 2011 decision, the Board (Chairman Pearce and Members Becker and Hayes) found that the employer, a South Carolina auto parts plant, unlawfully threatened, disciplined and discharged two employees who attempted to organize a union.  The employer filed this petition for review, raising substantial evidence challenges to the Board’s order.  The Board replied, and the case was argued in September 2012.

Following argument, the employer submitted a series of letters contending—for the first time—that the Board’s order was invalid because Member Becker’s appointment was infirm.  It relied on the D.C. Circuit’s opinion in Noel Canning, Inc. v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 133 S. Ct. 2861 (Jun. 24, 2013), and the Fourth’s Circuit’s subsequent decision in NLRB v. Enterprise Leasing S.E., 722 F.3d 609 (4th Cir. 2013).  Both of those cases held that the Constitution did not allow the President to make recess appointments during an intrasession Senate recess.  The Board argued that the employer’s belated arguments were waived.

The Court, without explicitly addressing the waiver argument, concluded:

Board Member Craig Becker served as one of the three panel members in this case.  However, Member Becker was appointed by the President on March 27, 2010, during a two-week adjournment of the Senate. . . .  Because his appointment was constitutionally invalid from its inception, . . . there were not enough valid members to meet the requisite quorum and the Board lacked the power to lawfully act when it issued its decision in this case.

It therefore “remanded the case to the NLRB for further proceedings as may be appropriate.”  The Court’s order is available here.

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Administrative Law Judge Decisions

Prudential Protective Services, LLC  (07-CA-095000; JD-72-13)  Taylor, MI.  Administrative Law Judge Melissa M. Olivero issued her decision on October 17, 2013.  Charge filed by Service Employees International Union (SEIU), Local 1.

The Avenue Care and Rehabilitation Center  (08-CA-094941; JD-74-13)  Cleveland, Ohio.  Administrative Law Judge Mark Carissimi issued his decision on October 17, 2013.  Charge filed by SEIU District 1199, WV/KY/OH The Healthcare and Social Service Workers Union.

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