Summary of NLRB Decisions for Week of December 24-28, 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
Brusco Tug and Barge, Inc. (19–RC–013872, 359 NLRB No. 43) Longview/Cathalmet, WA, December 14, 2012.
A Board majority (Chairman Pearce and Member Griffin) affirmed the Regional Director’s finding that tugboat mates were employees, and thus were properly included in the bargaining unit. Applying the Board’s decision in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), in which the Board clarified its standard for determining supervisory status, the Board concluded that the employer failed to meet its burden to show that the mates were statutory supervisors. The Board concluded that the mates did not responsibly direct employees. The Board further concluded that the mates’ assignment authority did not amount to supervisory authority. Member Hayes dissented. He found that the employer established that the mates assign and responsibly direct crewmembers and have complete authority over the vessel’s crew during their watch. He noted that the mates are licensed officers entitled under Federal law to exact obedience from crewmembers under them.
Petitioner – International Organization of Masters, Mates & Pilots, Pacific Maritime Region, AFL–CIO. Regional Director issued second supplemental decision on February 21, 2006. Chairman Pearce and Members Hayes and Griffin participated.
American Baptist Homes of the West d/b/a Piedmont Gardens (32-CA-063475; 359 NLRB No. 46) Oakland, CA, December 15, 2012.
The Board overruled Anheuser-Busch, Member Hayes dissenting, and announced that it will apply the Detroit Edison balancing test in future cases where the employer argues that it has a confidentiality interest in protecting witness statements from disclosure. In the present case, the Board applied Anheuser-Busch, Chairman Pearce dissenting on prospective application, and adopted the administrative law judge’s findings that two of the witnesses’ statements were exempt from disclosure and the witness names were not exempt from disclosure. Finally, the Board reversed the judge’s finding that one of the employee’s statements was not a witness statement within the meaning of Anheuser-Busch.
Charge filed by Service Employees International Union, United Healthcare Workers-West. Administrative Law Judge Gerald M. Etchingham issued his decision on April 16, 2012. Chairman Pearce and Members Hayes, Griffin, and Block participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Lintrac Services, Inc. (13-RC-089915) Northlake, IL, December 21, 2012. Order vacating order issued on December 19, 2012 that contained an inadvertent error and substituting the attached order in lieu thereof. Petitioner – International Brotherhood of Teamsters, Local 710.
First Coast Security Solutions, Inc. (05-RC-092557) Washington, DC, December 26, 2012. Order affirming dismissal of the petitioner’s request for review of the Regional Director’s administrative dismissal of the petition. Petitioner – National League of Justice and Security Professionals. Chairman Pearce and Members Griffin and Block participated.
Whitestone Group (The) (05-RC-086674) Washington, DC, December 26, 2012. Order affirming dismissal of the petitioner’s request for review of the Regional Director’s administrative dismissal of the petition. Petitioner – National League of Justice and Security Professionals (NLJSP). Chairman Pearce and Members Griffin and Block participated.
Allsource Global Management, LLC (09-UD-090610) Lexington and Richmond, KY, December 27, 2012. Having no exceptions filed, the Board adopted the Regional Director’s findings and recommendations and found that a certification of results of election should be issued. Petitioner – an individual.
Altura Concrete Corporation (22-CA-075740) Little Ferry, NJ, December 26, 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.
Sub-Acute Rehabilitation Center at Kearny, LLC d/b/a Belgrove Post Acute Care Center (22‑CA-093626) Kearny, NJ, December 26, 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 District 1199J NUHHCE, AFSCME, AFL-CIO.
WB Services, LLC (04-CA-077889) Philadelphia, PA, December 27, 2012. Having no statement of exceptions filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and ordered the respondent to take recommended action. Charge filed by International Union of Operating Engineers, Local 542, AFL-CIO.
Champlin Shores Assisted Living (18-CA-093766) Champlin, MN, December 28, 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 SEIU Healthcare Minnesota.
Appellate Court Decisions
USWA, Board Case No. 25-CB-8891 (reported at 357 NLRB No. 48) and IBEW Local 34, Board Case No. 13-CB-18961 (reported at 357 NLRB No. 45), consolidated on appeal under the name Richards et al. v. NLRB (7th Cir. decided December 26, 2012)
In a published opinion, the Court dismissed the charging party employees’ appeals of the Board's orders, finding they were not aggrieved under Section 10(f) of the Act.
In both cases, the Board had found that the unions maintained unlawful procedures requiring Beck objectors, who pay only the portion of dues used for collective bargaining, contract administration or grievance adjustments, to renew their objections annually. However, the Board limited the remedy to prospective relief only. Charging parties in both cases filed motions for reconsideration arguing that relief should extend nationwide to reimburse dues to all Beck objectors whom the unions had previously "flipped" after they failed to submit a new annual renewal. None of the four charging parties, however, had ever had dues deducted against their will--two had always submitted annual renewals and two had always been treated by their union as objectors even in the absence of filing a new renewal. The Board denied the motions for reconsideration in April 2012, reaffirming the remedy and rejecting the charging parties' additional challenge to three members' recess appointments. These appeals followed.
The Seventh Circuit dismissed the petitions for review, agreeing with the Board's claim on appeal that none of the charging parties had standing as a "person aggrieved by a final order of the Board" under the Act's grant of appellate jurisdiction. 29 U.S.C. § 160(f). First, the Court explained that, even if the Act grants the full expanse of Article III constitutional standing to define putative aggrieved parties, “[p]etitioners have not themselves suffered any injury-in-fact from the NLRB decisions” because they were always treated as Beck objectors. Second, the Court rejected charging parties’ arguments that two of them suffered an injury-in-fact by having to pay for postage to mail their objections.
Finally, the Court held that the petitioners’ mere status as charging parties before the Board does not per se grant them standing. While some cases suggested otherwise, the Court observed that “none ... involved a situation like this one, where the charging party was not actually injured by the final NLRB order.”
The Court’s published opinion is available here
Administrative Law Judge Decisions
Comau, Inc. (07-CA-073073; JD-68-12) Novi, MI. Charge filed by WISNE Automation Employees Association. Administrative Law Judge Mark Carissimi issued his decision on December 26, 2012.
Voith Industrial Services, Inc. (09-CA-075496, et al.; JD-66-12) Louisville, KY. Charges filed by General Drivers, Warehousemen & Helpers, Local 89, affiliated with International Brotherhood of Teamsters. Administrative Law Judge Bruce D. Rosenstein issued his decision on December 26, 2012.
Greater Omaha Packing Co., Inc. (17-CA-085735, et al; JD-69-12) Omaha, NE. Charges filed by Hartland Workers Center. Administrative Law Judge Arthur J. Amchan issued his decision on December 27, 2012.
GVS Properties, LLC (29-CA-077359; JD(NY)-39-12) New York, NY. Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 15, Local Lodge 447. Administrative Law Judge Kenneth W. Chu issued his decision on December 27, 2012.
Sun Cab, Inc. d/b/a Nellis Cab Company (28-CA-079813; JD(SF)‑57‑12) Las Vegas, NV. Charge filed by an individual. Administrative Law Judge Jay R. Pollack issued his decision on December 27, 2012.
Palm Haven Nursing and Rehab, LLC d/b/a St. Jude Care Center (32-CA-062707; JD(SF)‑58‑12) Manteca, CA. Charges filed by SEIU United Healthcare Workers-West. Administrative Law Judge Gregory Z. Meyerson issued his decision on December 27, 2012.
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