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Summary of NLRB Decisions for Week of September 10-14, 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

TT & W Farm Products, Inc. d/b/a Heartland Catfish Co. (26-CA-023722) 358 NLRB No.125) Itta Bena, MS and Greensboro, AL, September 11, 2012.

The Board adopted, with Member Hayes dissenting in part, the administrative law judge’s findings that the employer violated the Act by maintaining handbook rules prohibiting employees from “distributing handbills or similar literature on company property at any time,” “bearing false witness” against the company, and “willfully restricting production” or “participating in any interruption of work.”  In addition, the Board, Chairman Pearce dissenting in part, reversed the judge and dismissed the allegations that three work rules prohibiting employees from leaving their work stations or the plant without permission also violated the Act.   

Charge filed by an individual.  Administrative Law Judge Robert A. Giannasi issued his decision on December 21, 2010.  Chairman Pearce and Members Hayes and Griffin participated. 

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Flex Frac Logistics, LLC and Silver Eagle Logistics, LLC, joint employers (16-CA027976; 358 NLRB No. 127) Fort Worth, TX, September 11, 2012. 

The Board agreed with the administrative law judge that the employer’s confidentiality rule was unlawfully overbroad.  The Board found that employees would reasonably believe that prohibiting disclosure outside the company of, among other broad categories, “personnel information and documents” prohibited them from discussing wages and other terms and conditions of employment with union representatives.  As the judge found an employee was unlawfully discharged only because the rule was unlawful without considering Continental Group, Inc., 357 NLRB No. 39 (2011), the Board severed and remanded that allegation to the judge for her to consider whether the employee violated the rule by engaging in protected conduct or conduct that otherwise implicates the concerns underlying Section 7.  Member Hayes, writing separately, dissented.  He would find the confidentiality rule lawful because, read in context, no reasonable employee would believe that the rule prohibited him or her from discussing wages.  Because he would find the rule lawful, he would find the employee’s discharge lawful and thus would not remand that allegation for further analysis.           

Charge filed by an individual.  Administrative Law Judge Margaret G. Brakebusch issued her decision on February 6, 2012.  Members Hayes, Griffin, and Block participated.    

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Open Door Retail Group, Inc. (16-CA-028083; 358 NLRB No. 123) Kemah, TX, September 10, 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 compliance specification.  A controversy having arisen over the amount of backpay due the discriminatee, the Regional Director issued a compliance specification and notice of hearing alleging the amount due under the Board’s order and notifying the respondent that it must file a timely answer complying with the Board’s rules and regulations.  Although properly served with a copy of the compliance specification, the respondent failed to file an answer. In its Supplemental Decision and Order, the Board ordered the employer to pay the discriminatee the amount owed plus interest accrued to the date of payment.

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

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Joseph Hagins and Linda P. Szymoriak-Hagins, d/b/a His and Hers Beauty Spa (16‑CA‑02807; 358 NLRB No. 126) San Antonio, TX, September 11, 2012. 

The complaint alleged that the respondent, His and Hers Beauty Spa, violated the Act by delaying in furnishing the union with requested information necessary for the purposes of collective bargaining and decreasing pay for new hires from a 56% commission rate to a 50% commission rate.  The respondent failed to file an answer to the complaint, and the letter it filed was legally insufficient because it failed to address any of the complaint allegations.  Thus, the Board granted the Acting General Counsel’s motion for default judgment and found the alleged violations.  The Board ordered the respondent to rescind the change in commission for the new hires and make them whole for any loss of earnings and other benefits they suffered as a result. 

Charge filed by United Food and Commercial Workers, Local 455.  Chairman  Pearce and Members Hayes and Griffin participated.

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Pacific Maritime Association (21-CA-039434, 21-CB-14966; 358 NLRB No. 133) Long Beach, CA, September 14, 2012.

The complaint in this case alleged that the union violated Section 8(b)(1)(A) through its involvement in the prosecution of three grievances and that the Employer violated Section 8(a)(1) by its actions in connection with one grievance. The Board adopted the administrative law judge’s finding that the complaint should be dismissed. The Board found, with respect to the first grievance, that the allegations were barred by Section 10(b). With respect to the second grievance, the Board found that the Acting General Counsel had failed to demonstrate that the Charging Party engaged in protected concerted activity.  As to the third grievance, the Board found that a hearing alone was not a proper basis to impose unfair labor practice liability on the respondents.

Charges filed by an individual. Administrative Law Judge John J. McCarrick issued his decision on September 26, 2011. Members Hayes, Griffin, and Block participated.

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Ambassador Services, Inc. (12-CA-026758 et al.; 358 NLRB No. 130), Cocoa Beach, FL, September 14, 2012

In Ambassador Services, Inc., the Board adopted the administrative law judge’s findings that: (1)  a named employee was not a supervisor; (2) in soliciting the named employee’s support for the decertification petition, a supervisor violated Section 8(a)(1); (3) the respondent violated Section 8(a)(5) by failing and refusing to bargain with the union because the respondent  did not establish that a majority of employees in the unit signed the decertification petition; (4) the respondent further failed to recognize and bargain with the union on the basis of a tainted decertification petition; and (4) it is unnecessary to address the applicability of the Board’s successor bar holding in UGL-UNICCO Services, Inc., 357 NLRB No. 76 (2011).  The Board reversed the judge’s Section 8(a)(1) finding that the respondent did not coercively interrogate employee J.D. Martin.  Member Hayes briefly dissented.  The Board also reversed the judge’s Section 8(a)(1) finding that the respondent’s rule prohibiting walking off the job and/or leaving the premises during working hours without permission was not unlawful.  The Board, consistent with precedent holding substantially identical language to be overly broad, found that the respondent’s rule prohibiting “walking off the job” would reasonably be construed as prohibiting Section 7 activity and unlawful.

Charges filed by the International Longshoreman’s Association, Locals 1922 and 1359, and an individual. Administrative Law Judge George Carson II issued his decision on September 13, 2011.  Members Hayes, Griffin, and Block participated.

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Embarq Corp., a wholly-owned Subsidiary of CENTURYTEL, Inc., d/b/a Centurylink (28-CA-022804; 358 NLRB No. 134) Las Vegas, NV, September 14, 2012

The Board adopted the administrative law judge’s finding that the respondent violated the Act by refusing to bargain with the union, IBEW Local 396, over its decision to eliminate a work classification and consequently discharge nine retail cashiers.  The Board majority, consisting of Chairman Pearce and Member Block, found that neither the management-rights clause nor the layoff section of the parties’ collective-bargaining agreement, by its terms, authorized the respondent’s action; and that the union did not waive its right to bargain over the decision by any of its actions after it gave notice that it intended to bargain over the respondent’s decision whenever it was finalized.  The Board also found that the respondent later violated the Act by photographing its employees while they were participating in an informational picket line on a public sidewalk outside one of its stores.  In dissent with respect to the violation, Member Hayes argued that the action at issue was authorized by the contract’s management-rights clause and layoff provisions even under the Board’s current requirement that a waiver of the right to bargain be “clear and unmistakable,” but also under the “contract coverage” standard (which he endorsed) rejected by the Board in Provena St. Joseph Medical Center, 350 NLRB 808 (2007). 

Charges filed by the International Brotherhood of Electrical Workers, Local 396.  Administrative Law Judge George Carson II issued his decision on August 24, 2010.  Chairman Pearce and Members Hayes and Block participated.

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Carey Salt Company, a Subsidiary of Compass Minerals International, Inc.  (15-CA-019704, et al.; 358 NLRB No. 124)  Cote Blanche, LA, September 12, 2012

The Board adopted all but one of the judge’s findings that the Respondent committed various unfair labor practices throughout negotiations for a successor collective-bargaining agreement and an employee strike. The Board reversed the judge’s finding that the Respondent violated Section 8(a)(5) of the Act by insisting on bargaining proposals that left the Union without any representational rights and employees in a worse position than if they were unrepresented.  However, the Board made an additional finding of overall bad-faith bargaining. The Board ordered the employer to desist from the unlawful activity, bargain with the union at its request, restore terms and conditions of employment, offer reinstatement and backpay for any employees who lost employment because of the illegal behavior.

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union and Local Union 14425. Administrative Law Judge Margaret G. Brakebusch issued her decision on August 1, 2011. Members Hayes, Griffin and Block participated.

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Kirkstall Road Enterprises, Inc. / Quay Street Enterprises, Inc. (02-RC-023547) New York, NY, September 10, 2012.  The Board having reviewed the record in light of exceptions and briefs, adopted the administrative law judge’s findings and recommendations as modified, and found that a certification of representative should be issued.  Petitioner – Writers Guild of America East.  Chairman Pearce and Members Griffin and Block participated.

United States Infrastructure Corporation (USIC) (11-RD-000732) Winston-Salem, NC, September 10, 2012.  Decision and order remanding case to Regional Director for the purpose of issuing a notice of hearing before a hearing officer to resolve the issues raised by the employer’s challenges to ballot.  Petitioner – an individual.  Members Hayes, Griffin, and Block participated.

Stamford Hospitality, LP, d/b/a Stamford Plaza Hotel and Conference Center, LP (34‑RC‑080390) Stamford, CT, September 11, 2012.  Order denying the employer’s request for review of the Regional Director’s supplemental decision on objection and certification of representative.  Petitioner – United Food and Commercial Workers Union, Local 371.  Chairman Pearce and Members Griffin and Block participated.

Golden Farm Brooklyn, Inc. d/b/a Golden Farm Grocery (29-RC-077022) Brooklyn, NY, September 12, 2012.  Decision and order remanding the case to the Regional Director for further appropriate action.    Petitioner – Local 336, Retail, Wholesale, and Department Store Union, United Food and Commercial Workers. 

Rock-Tenn Company (13-RC-079088) North Chicago, IL, September 12, 2012.  Decision and certification of results of election.  Petitioner – United Electrical Radio and Machine Workers of America (UE). 

New York Presbyterian Hospital (02-RC-079900) New York, NY, September 12, 2012.  Decision and certification of results of election.  Petitioner – International Brotherhood of Teamster, Local 810.  

Stamford Plaza Hotel and Conference Center and Stamford Plaza, LP, a joint and/or single employer (34-RC-081443) Stamford, CT, September 12, 2012.  Decision and certification of representative.  Petitioner – United Food & Commercial Workers International Union, Local 371.  Chairman Pearce and Members Griffin and Block participated.

Kinney System, Inc. d/b/a Central Parking System of Massachusetts (01‑RC‑071163) Boston, MA, September 14, 2012.  Decision adopting administrative law judge’s recommended disposition of challenged ballots and Direction remanding to the Regional Director.  Petitioner – International Brotherhood of Teamsters, Local 25.  Members Hayes, Griffin and Block participated.

Duquesne University of the Holy Spirit (06-RC-080933) September 14, 2012. Order denying employer’s request to file a Special Appeal of the Acting Regional Director’s order denything motion to withdraw from stipulated election agreement, and remanding case to the Regional Director to open and count the ballots and to take further appropriate action, with Member Hayes dissenting. Petitioner – United Steelworkers. Chairman Pearce and Members Block and Hayes participated.

Care One at Madison Avenue (22-RC-072946) September 13, 2012. Decision and direction of a new election. Petitioner – 1199 SEIU United Healthcare Workers East. Chairman Pearce and Members Griffin and Block participated.

Metcalfe Foods – West, Inc. (30-RC-079306) September 13, 2012. Decision and Certification of Representative. Petitioner – UFCW Local 1473. Chairman Pearce and Members Griffin and Block participated.

C Cases

Horizon Lines of Puerto Rico, Inc. (24-CA-075533) Guaynabo, PR, September 10, 2012.  Order denying respondent’s motion for partial summary judgment.  Charge filed by International Longshoremen Association, Local 1575.  Chairman Pearce and Members Griffin and Block participated.

Rochester Gas & Electric Corporation (03-CA-081230) Rochester, NY, September 11, 2012.  Order denying the respondent’s motion for partial dismissal of the complaint.  Charge filed by Local Union 36, International Brotherhood of Electrical Workers, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

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Appellate Court Decisions

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

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Decisions of Administrative Law Judges

Lederach Electric, Inc. (04-CA-037725; JD-46-12) Lederach, PA.  Charge filed by International Brotherhood of Electrical Workers, Local 380.  Administrative Law Judge Earl E. Shamwell, Jr., issued his decision on September 10, 2012.

Portola Packaging, Inc. (28-CA-067274; JD-45-12) Phoenix, AZ. Charges filed by two individuals and the United Food and Commercial Workers Union, Local 99. Administrative Law Judge Gregory Meyerson issued his decision on September 13, 2012.

Memorial Hospital of Salem County (04-CA-073452; JD-48-12) Philadelphia, PA. Charges filed by Health Professionals and Allied Employees. Administrative Law Judge Arthur Amchan issued his decision on September 14, 2012.

833 Central Owners Corp. (29-CA-070910; JD-22-12) Brooklyn, NY. Charge filed by Local 621, United Workers of America. Administrative Law Judge William Cates issued his decision on September 14, 2012.

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