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Summary of NLRB Decisions for Week of September 12-16, 2011

 

The Weekly Summary 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

Ashland Facility Operations, LLC, d/b/a Ashland Nursing & Rehabilitation Center (5‑CA‑60739; 357 NLRB No. 90) Ashland, VA, September 16, 2011.

In this refusal-to-bargain case, the Respondent failed and refused to bargain with the union as the exclusive collective-bargaining representative of the employees.  The Board ordered the Respondent to bargain on request with the union and, if an understanding is reached, to embody the understanding in a signed agreement.  Also, to ensure the employees are accorded the services of their selected bargaining agent for the period provided by law, the Board shall construe the initial period of the certification as beginning the date the Respondent begins to bargain in good faith with the union.

Charge file by United Food and Commercial Workers International Union, Local 400.  Chairman Pearce and Members Becker and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Case

Pathways of the River Valley (01-RD-62053) September 13, 2011.  Order granting Employer’s request for special permission to appeal.  Petitioner – an Individual.  Chairman Pearce and Members Becker and Hayes participated.

C Cases

Kephart Trucking Company, Inc. (22-CA-29531, 29733) Kearney and Delaware, NJ, September 12, 2011.  Order adopting the Administrative Law Judge’s findings and conclusions and requesting that Respondent take action recommended by the judge.  Charges filed by Teamsters, Local 125, IBT.

1109 Nostrand Avenue Bakery, Inc. d/b/a Allan’s Bakery (29-CA-30470) Brooklyn, NY, September 12, 2011.  Order adopting the Administrative Law Judge’s findings and conclusions and requesting that Respondent take action recommended by the judge.  Charge filed by Local 53, Bakery, Confectionary, Tobacco Workers & Grain Millers’ International Union, AFL-CIO.

ABC Pest Control of Houston, Inc., d/b/a ABC Home and Commercial Services (16‑CA‑27505, 27673) Houston, TX, September 13, 2011.  Order adopting the Administrative Law Judge’s findings and conclusions and requesting that Respondent take action recommended by the judge.  Charges filed by Individuals.

Kitsap Mental Health Services (19-CA-32269, et al.) Bremerton, WA, September 13, 2011.  Order adopting the Administrative Law Judge’s findings and conclusions and requesting Respondent to take action recommended by the judge.  Charges filed by SEIU Healthcare 1199NW.

Newspaper and Mail Deliverers’ Union of New York and Vicinity (NYP Holdings, Inc., d/b/a New York Post) (2-CB-21740, et al.) New York, NY, September 14, 2011.  Order denying Respondent’s motion to dismiss the complaints and Acting General Counsel’s motion to strike.  Charges filed by Individuals.  Chairman Pearce and Members Becker and Hayes participated.

United States Postal Service (05-CA-36390) Capitol Heights, MD, September 16, 2011.  Decision and order pursuant to a settlement stipulation.  Charge filed by American Postal Workers Union, Nations Capital Southern Maryland Area, Local 140, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

Russell Nelson, Inc. (17-CA-25175) Leawood, KS, September 16, 2011.  Order transferring proceeding to the Board and notice to show cause.  Charge filed by Operative Plasterers and Cement Masons, Local 538. 

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Appellate Court Decisions

Local Joint Executive Board of Las Vegas (Hacienda Hotel), No. 28-CA-13274 (published at 355 NLRB No. 154)  (9th. Cir., decided September 13, 2011).

In a published opinion, the Ninth Circuit granted the Union's petition for review, concluding that the employers unlawfully ceased dues-checkoff following the expiration of an agreement that did not contain a union security clause in a right-to-work state. 

This case has a long history, and this was its third trip to the Ninth Circuit.  In the initial decision, the Board applied its decisions in Bethlehem Steel Co., 136 NLRB 1500 (1962) and Tampa Sheet Metal Co., 288 NLRB 322 (1988), to conclude that the Nevada employers here did not violate the Act by unilaterally ceasing dues-checkoff following contract expiration.  The Ninth Circuit reversed.  It observed that Bethlehem Steel arose in the context of a union security clause, and found that an employer may unilaterally cease dues-checkoff in that context because the two provisions were intertwined; in the absence of union security, as here, where employees signed up for dues deduction on their own volition, the Court could not discern a rationale for allowing unilateral cessation.  It therefore remanded to the Board to explain the rule or change it.  On remand, the Board again dismissed the unilateral-change allegation, but this time because it found that the union waived its right to bargain over the cessation of dues-checkoff; the Court, however, disagreed, and remanded a second time for the Board to explain why unilateral cessation of dues-checkoff under Bethlehem Steel should apply absent union security.

In its most recent decision, the Board deadlocked 2-2, with Member Becker recused.  Chairman Liebman and then-Member Pearce would have reversed prior precedent; Members Schaumber and Hayes would have upheld it.  Absent a three-vote majority to do either, the Board held that its decision-making traditions required it to apply prior precedent and dismiss the complaint. 

The Ninth Circuit reversed.  First, it concluded that, while the Board's traditions may require three votes to reverse or establish precedent, "[t]he question presented here is not whether the NLRB's chosen procedures are adequate, but rather whether the explication of its ruling is adequate."  It therefore concluded that the Board had not yet provided a reasoned explanation for its rule excluding dues-checkoff from the unilateral change doctrine in right-to-work states.  Having rejected the Board’s explanation, the court found it appropriate to resolve the case itself, rather than remanding to the Board again.  Although mindful of the Board's primary responsibility for developing national labor policy, the Court found that a third remand was not called for, "[g]iven the amount of time that this case has been pending before the Board and the Board's continued inability to provide a rational justification for the rule it proposes.”  Turning to the issue in the case, the Court held that, "in a right to work state, where dues-checkoff does not exist to implement union security, dues-checkoff is akin to any other term of employment that is a mandatory subject of bargaining," and may not be unilaterally terminated after contract expiration.  The Court remanded to the Board "to determine what relief is warranted," and specifically noted that the Board, in future cases, could adopt a different rule if justified by reasoned explanation. 

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Decisions of Administrative Law Judges

Alcan Rolled Products-Ravenswood, LLC (9-CA-46267; JD-56-11) Ravenswood, WV.  Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing Energy, Allied Industrial and Service Workers International, Local 5668, AFL-CIO,CLC.  Administrative Law Judge David I. Goldman issued his decision September 12. 2011.

Ambassador Services, Inc. (12-CA-26758, et al.; JD(ATL)-25-11) Port Canaveral, FL.  Charges filed by International Longshoremen’s Association, Locals 1922 and 1359, AFL-CIO.  Administrative Law Judge George Carson II issued his decision September 13, 2011.

HTH Corporation, Pacific Beach Corporation, and KOA Management, LLC, a single employer, d/b/a Pacific Beach Hotel (37-CA-7965, et al.; JD(SF)-34-11) Honolulu, HI.  Charges filed by International Longshore and Warehouse Union, Local 142.  Administrative Law Judge John J. McCarrick issued his decision September 13, 2011.

United States Postal Service (7-CA-53579, et al.; JD(ATL)-26-11) Mt. Clemens, MI, September 15, 2011.  Charges filed by Branch 654, National Association of Letter Carriers, AFL-CIO.  Administrative Law Judge Michael A. Marcionese issued his decision September 15, 2011.

Case Farms Processing, Inc. (8-CA-39152, et al.; JD-57-11) Winesburg, OH.  Charges filed by United Food & Commercial Workers, Local 880.  Administrative Law Judge Mark Carissimi issued his decision September 16, 2011.

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