Summary of NLRB Decisions for Week of April 2-6, 2012
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 Decision
URS Energy and Construction, Inc. (30‑CA‑018775; 358 NLRB No. 25) Oak Creek, WI, April 5, 2012.
The Board affirmed the administrative law judge’s finding that the employer violated Section 8(a)(3) of the Act by laying off charging party because of his protected activities.
Charge filed by an individual. Administrative Law Judge William N. Cates issued his decision on July 28, 2011. Members Hayes, Flynn, and Block participated.
New Link LTD, Inn Site, Inc., and Cherlayne, Inc., single employer, and Detroit Center for Care, LLC, joint employer (07‑CA‑053651; 358 NLRB No. 26) Detroit, MI, April 6, 2012.
The Acting General Counsel sought default judgment in this case pursuant to the terms of a settlement agreement. The Board ordered that the respondents cease and desist from withdrawing recognition from the union and failing and refusing to bargain with the union as the exclusive collective bargaining representative of the employees in the unit; refusing to bargain collectively with the union by failing and refusing to furnish it with certain requested information and by unreasonably delaying in providing the union with other requested information that was relevant and necessary to the union’s performance of its functions; unilaterally cancelling the unit employees’ health insurance without providing the union prior notice and the opportunity to bargain; unilaterally changing the hours/shifts of unit employees; reducing the wages of certain unit employees; reducing the working hours of unit employees; and changing the payroll period for unit employees from bi-weekly to bi-monthly without providing the union prior notice and the opportunity to bargain; and interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
Charge filed by Michigan Council 25, American Federation of State, County and Municipal Employees (AFSCME), AFL‑CIO. Members Hayes, Griffin, and Flynn participated.
Tom Arand, P.C. d/b/a Animal Care Clinic (16-CA-026387; 358 NLRB No. 28) Round Rock, TX, April 6, 2012.
The Acting General Counsel sought default judgment in this case on the ground that the respondent failed to file an answer to the amended supplemental compliance specification. The Board ordered that the respondent make whole employees by paying them the amounts following their names, plus interest accrued to the date of payment, minus tax withholdings required by federal and state laws.
Charge filed by Equal Justice Center. Members Hayes, Griffin, and Flynn participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Oleanders Holdings LLC d/b/a Sacramento Sub-Acute (20‑RC‑074337) Sacramento, CA, April 3, 2012. Order granting employer’s request for review of the Regional Director’s decision and direction of election. Member Griffin dissented: would deny review. Petitioner – Service Employees International Union, United Healthcare Workers-West. Members Hayes, Griffin, and Flynn participated.
Proppant Specialists, LLC (30-RC-006783) Tomah, WI, April 3, 2012. Decision and direction that Regional Director open and count ballots. Petitioner – International Union of Operating Engineers, Local 139, AFL‑CIO. Chairman Pearce and Members Flynn and Block participated.
Rhode Island School of Design (01-RC-073853) Providence, RI, April 5, 2012. Order denying employer’s request for review of the Regional Director’s decision and direction of election. Petitioner – New England Coalition of Public Safety. Chairman Pearce and Members Griffin and Block participated.
Steeler, Inc. (32-RC-063182) Newark, CA, April 5, 2012. Decision and certification of representative. Petitioner – Teamsters, Local 853, International Brotherhood of Teamsters. Chairman Pearce and Members Hayes and Block participated.
General Dynamics - NASSCO (21-CA-064325, et al.) San Diego, CA, April 2, 2012. Order denying employer’s petition to revoke subpoena. Charges filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL‑CIO. Chairman Pearce and Members Hayes and Griffin participated.
Russell Nelson, Inc. (17-CA-025175) Leawood, KS, April 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 Operative Plasterers and Cement Masons, Local 538.
Ralphs Grocery Company (31-CA-027160, et al.) Los Angeles, CA, April 3, 2012. Order granting motions for reconsideration and to reopen the record and remanding matter to Regional Director for further appropriate action. Charges filed by United Food and Commercial Workers, Locals 135, 324, 770, 1036, 1167, 1428, 1442.
Russell Nelson, Inc. (17-CA-025175) Leawood, KS, April 4, 2012. Order correcting transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charge filed by Operative Plasterers and Cement Masons, Local 538.
Arco Construction Group (22-CA-072747) Elizabeth, NJ, April 4, 2012. Order granting employer’s petition to revoke subpoena duces tecum B‑612392. Charge filed by Local 595, LIUNA. Members Hayes, Griffin, and Flynn participated.
Teamsters, Local 206, affiliated with the International Brotherhood of Teamsters (First Student, Inc.) (36‑CB‑002823) Sandy, OR, April 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.
Veolia Transportation Services, Inc. (Phoenix Division) (28-CA-023249, et al.) Phoenix, AZ, April 5, 2012. Order granting the Acting General Counsel’s request to withdraw motion for default judgment. Charges filed by Amalgamated Transit Union, Local 1433.
Appellate Court Decisions
Brentwood at Hobart, Board Case No. 13-CA-46045 (reported at 355 NLRB No. 149) (6th Circuit decided April 2, 2012)
In a published decision, the Court enforced the Board's order in this refusal-to-bargain case, agreeing that the conduct of the underlying election was not objectionable.
After the union prevailed in a representation election 28‑12, the employer submitted an election objection claiming that, "[d]uring the critical period, on September 18, 2009," a union flyer featured photographs of employees without their consent. At the objections hearing, however, the employer attempted to submit a second flyer distributed on September 14, which the Board excluded as not encompassed in the exceptions.
Before the Court, the employer's sole challenge to the election claimed that the Board should have allowed it to litigate the allegedly-objectionable September 14 flyer because it generally challenged conduct occurring "during the critical period." The Court disagreed: "That may be a plausible reading of the objection, we suppose, but the Board's reading of it"--to refer only to the September 18 flyer--"is surely the more natural one." The Court further rebuffed the employer's claim that the evidentiary ruling was inconsistent with other Board case law, explaining that, even if it were, "'[t]he more germane inquiry' . . . was whether the evidentiary ruling 'was reasonable under the circumstances and limited . . . to the practicalities of the situation.'"
The Court's decision is available here.
735 Putnam Pike Operations, LLC, Board Case No. 1-CA-46619 (reported at 356 NLRB No. 138) (D.C. Circuit decided April 2, 2012).
In an unpublished judgment, the Court agreed that the employer's registered nurses were not statutory supervisors. It therefore denied the employer's petition for review of the Board's order directing it to bargain following the Board's certification of the union's 13-0 election victory.
The union petitioned to represent a unit of the employer's registered nurses, and the employer claimed that the RNs were all statutory supervisors. The Board, and then the Court, rejected that claim. The Court found that the nurses did not engage in discipline as "[t]he 'write-ups' and performance evaluations that they completed regarding other staff members were not 'final and authoritative' disciplinary actions . . . and they had no negative effects on the reviewed employees' job status or pay." Further, as the Court recognized, the nurses did not responsibly direct others because the employer failed to show that it held any nurses accountable "if the staff failed to perform as directed." Finally, the Court agreed that the employer failed to prove that nurses assigned work with independent judgment, noting the lack of evidence demonstrating they exercised discretion in the few instances where they appointed employees to specific jobs or shifts. Accordingly, because the nurses were not supervisors under Section 2(11) of the Act, the employer had no basis for refusing to bargain with the union after its election victory, and the Court enforced the Board's order.
The Court's decision is available here.
Decisions of Administrative Law Judges
47 Old Country, Inc. d/b/a Babi I; Jilly SN, Inc.; Babi Nail USA II Corp. d/b/a Babi II (29‑CA‑030247; JD(NY)‑08‑12) Bohemia, NY. Charge filed by Chinese Staff and Workers’ Association. Administrative Law Judge Steven Davis issued his decision on April 3, 2012.
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