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Weekly Summary for Week of February 14-18, 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

 Stephens Media, LLC, d/b/a Hawaii Tribune-Herald (37–CA–7043, 356 NLRB No. 63)  Hilo, HI, February 14, 2011. 

 The Board adopted the judge’s findings that the Respondent violated the Act by: suspending and/or discharging three employees and issuing a written warning to a fourth; interrogating employees; disparately and discriminatorily enforcing its security access policy against the Union; discriminatorily prohibiting employees from wearing buttons and armbands in support of discharged or suspended employees; and promulgating and maintaining a rule prohibiting employees from making secret audio recordings of conversations in response to protected activity.  The Board (Member Hayes dissenting) found that one of the suspended/discharged employees did not lose the protection of the Act by secretly tape recording a meeting with a manager that he reasonably believed could result in discipline.  The Board also agreed with the judge that another unlawfully suspended/discharged employee did not lose his reinstatement rights by publicly disparaging the quality of the Respondent’s news coverage after his discharge.  In doing so, the Board clarified the proper standard to apply in cases in which the employer contests an unlawfully discharged employee’s reinstatement based on the employee’s alleged post-discharge misconduct.  The Board also adopted most of the judge’s findings that the Respondent violated by refusing to provide or delaying the provision of relevant information requested by the Union. But the Board deferred decision on whether the Respondent had a duty to provide witness statements to the Union, and instead has solicited further briefs on the issue.   

Charges filed by Hawaii Newspaper Guild Local 39117, Communications Workers of America, AFL-CIO.  Administrative Law Judge John J. McCarrick issued his decision on March 6, 2008.  Chairman Liebman and Members Becker, Pearce, and Hayes participated.

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Cobb Mechanical Contractors, Inc., (16-CA-26488, 356 NLRB No. 96) February  15, 2011. Round Rock, Texas

The Board affirmed the judge’s disposition of all unfair labor practices except for his dismissal of a surveillance charge involving photographing union job applicants as they left the employer’s office after making their applications for employment.  The Board noted the undisputed testimony of one of the applicants that the employer’s operations manager appeared to have a regular camera and appeared to be taking pictures of the applicants.  The Board then noted that the applicants congregated just outside the employer’s office immediately after concertedly applying for work in an attempt to organize the employer’s workforce.  The Board found that this conduct was at least a continuation of, and a part of, the res gestae of the organizing attempt and was therefore protected.  The Board also noted that the operation manager’s photographing, or apparent photographing, was obviously triggered by the applicants’ union activity and would reasonably have tended to coerce employees in the exercise of their Section 7 rights, regardless of what the applicants were actually discussing outside the employer’s office.  The Board found the violation.

Charge filed by Sheet Metal Workers Local Union 67. Administrative Law Judge George Carson II issued his decision on December 28, 2009. Chairman Liebman and Members Pearce and Hayes participated.

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Quality Health Services of P.R., INC. d/b/a Hospital San Cristobal (24-CA-11438) February 17, 2011. Ponce, PR

The Board adopted the Administrative Law Judge’s conclusions that the respondent violated Section 8(a)(5) of the Act by unilaterally altering its past practices with respect to its holiday pay policy, sick leave policy, and holiday schedule.  The Board noted that the alterations were material, substantial, and significant.  Member Hayes also noted that because the holiday pay policy and holiday schedule were memorialized in the parties’ collective-bargaining agreement, the judge inappropriately characterized these contractual benefits as “past practices.”  The Board also adopted the judge’s denial of the respondent’s request to defer to arbitration the holiday pay and sick leave issues.  The Board noted that deferral was inappropriate because the respondent failed to put in evidence the contractual arbitration clause it claimed covered the holiday pay and sick leave issues.  Additionally, the Board adopted the judge’s finding that the holiday pay issue should not be deferred because it was interrelated with an allegation that the respondent had failed to provide information to the union, and the holiday pay issue had been fully litigated when the information allegation settled.  Members Hayes did not rely on the latter rationale in declining to defer the holiday pay allegation.

Charge filed by Unidad Laboral De Enfermeras Y Empleados De La Salud.  Administrative Law Judge William N. Cates issued his decision November 9, 2010.  Chairman Liebman and Members Pearce and Hayes participated.  

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Decisions of Administrative Law Judges

Domsey Trading Corp. (29-CA-14548) Brooklyn, NY. Charges filed by International Ladies’ Garment Workers’ Union AFL-CIO. Administrative Law Judge Raymond Green issued his decision on February 14, 2011.

Vegas Valley Food & Beverage, LLC, d/b/a Déjà vu Erotic Ultra Lounge Fusion (28-CA-23032) Las Vegas, NV. Charge filed by an individual. Administrative Law Judge William Cates issued his decision on February 15, 2011.

Daycon Products Company, Inc. (05-CA-035687)  Washington D.C. Charges filed by Drivers, Chauffeurs and Helpers Local Union No. 639. Administrative Law Judge Joel Biblowitz issued his decision on February 15, 2011.

Air Line Pilots Association, International (05-CA-034837) Herndon, Virginia. Charges filed by an individual. Administrative Law Judge Bruce Rosenstein issued his decision on February 15, 2011.

Ducci Electrical Contractors (34-CA-012639) Torrington, Connecticut. Charge filed by an individual. Administrative Law Judge Steven Davis issued his decision on February 15, 2011.

Dresser-Rand Corp. (03-CA-027141) Olean, Wellsville and Painted Post, New York. Charges filed by Local 313, IUE-CWA, AFL-CIO. Judge Paul Buxbaum issued his decision on February 18, 2011.

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Appellate Court Decisions

NLRB v. Domsey Trading Corp. (29-CA-14548 & 2d Cir. 10-3356) February 18, 2011:

The Second Circuit denied the Board's application for enforcement in this compliance case and remanded to the Board for additional proceedings. This case involves Domsey's unlawful discharge of approximately 200 unfair-labor-practice strikers in 1990.  During the compliance hearing in 1997, Domsey attempted to cross-examine each discriminatee about their immigration status, arguing that undocumented workers were ineligible for backpay.  The Administrative Law Judge refused to hear that testimony and that of an proffered expert witness offered by Domsey, instead following then-current law as to the relevance of immigration status to backpay.  Ultimately, the ALJ awarded over a million dollars in backpay to the 200 discriminatees.

After exceptions were filed, the Supreme Court decided Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), which prohibited backpay for undocumented workers, and, in two supplemental decisions, the Board decided the cases of several discriminatees whose immigration status had ended up on the record during the underlying hearing.  Domsey argued to the court that the ALJ's evidentiary ruling--denying it the opportunity to question the strikers' immigration status generally--was incorrect both before, and, especially after, Hoffman.  Finding merit to that argument, the Second Circuit denied enforcement to the Board's order, and remanded the case for further proceedings.  The Court first rejected the Board's claim that Domsey failed to preserve its objection for judicial review by failing to raise it to the Board.  Rather, the court noted that, regardless of whether Domsey preserved its challenge to each of the strikers' individual immigration status, it properly brought to the Board its objection to the ALJ's evidentiary rulings. 

On the merits of Domsey's claim, the Court explained that, "[a]fter Hoffman, it is clear that undocumented immigrants are ineligible for backpay under the NLRA, and . . . that immigration status is relevant to the question of backpay eligibility."  It therefore found that the Board abused its discretion in affirming the ALJ's decision to prohibit cross-examination of the strikers' immigration status, which--by the time of the Board's decision--"was based on an outdated and erroneous view of the law."  In remanding, the Court held that "employers may cross-examine backpay applicants with regard to their immigration status," and left "it to the Board to fashion evidentiary rules consistent with Hoffman that “preserve the integrity of [the Board’s] proceedings.”

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Manhattan College (02-RC-23543) February 16, 2011. Order granting the employer’s request for review and denying the request for review in all other respects.

The Atlantic Group d/b/a DZ Atlantic (18-RC-17721) February 17, 2011. Decision and certification of results of election.

Western Turnpike Rescue Squad, Inc. (03-RC-11994) February 17, 2011. Decision and certification of results of election.

Gourmet Boutique, LLC (29-RC-11944 et al) February 17, 2011. Decision and order remanding to Regional Director for further appropriate action.

Yonkers Raceway Corp. (02-RC-23503) February 17, 2011. Order denying request for review.

C Cases

Providence/Hotel Project Group d/b/a Frank Hotel (20-CA-35123 et al.) February 14, 2011. Order denying special appeal.

Downtown BID Services Corp. (05-CA-36375) February 18, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.

Millenium Parking Metropolitan Valet (13-CA-46285) February 18, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.

 

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