Summary of NLRB Decisions for the Week of June 20-24, 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
National Security Technologies, LLC (28-CA-022999; 356 NLRB No. 183) Las Vegas, NV, June 21, 2011.
The Board adopted the administrative law judge’s dismissal of the complaint alleging that the employer unlawfully refused to hire an applicant or to consider the applicant for hire. The judge found that the General Counsel had not shown that antiunion animus had contributed to the employer’s decision. The Board emphasized that it would reach the same result using the analytical framework of either FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), or Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Charge filed by an Individual. Administrative Law Judge Margaret G. Brakebusch issued her decision on December 14, 2010. Chairman Liebman and Members Becker and Hayes participated.
White Motor Sales d/b/a Fairfield Toyota Fairfield Imports d/b/a Fairfield Toyota (20-CA-35310; 356 NLRB No. 174) Fairfield, CA, June 9, 2011. (Correction issued June 21, 2011.)
Test of Certification: The Board granted the Acting General Counsel’s motion for summary judgment in this unfair labor practice case on the ground that the respondents did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the union was certified as the bargaining representative. The Board also ordered the respondents to give the Union information it requested for bargaining.
Charge filed by Automotive Machinists Lodge No. 1173. Chairman Liebman and Members Becker and Hayes participated.
Goya Foods of Florida (12-CA-23524 et al.; 356 NLRB No. 184) Miami, FL, June 22, 2011.
The full Board adopted the administrative law judge’s findings that the employer violated the Act by unilaterally changing employees’ retirement and health insurance plans, refusing to furnish requested information, and distributing a document stating that union employees are not eligible to participate in a particular retirement plan. The Board unanimously ruled that employees should be made whole for any losses they suffered as a result of the unilateral changes in health insurance plans even if their union chooses not to demand restoration of the original health insurance plan and accepts the unlawfully implemented plan. In issuing that remedy, the Board overruled Brooklyn Hospital Center, 344 NLRB 404 (2005), and similar cases which held that make whole relief would be improper under those circumstances.
Charges were filed by UNITE HERE, CLC. Administrative Law Judge Keltner W. Locke issued his decision on January 23, 2008. Chairman Liebman and Members Becker, Pearce, and Hayes participated.
Republic Windows and Doors, LLC & Echo Windows and Doors, LLC an alter ego (13-CA-45077; 356 NLRB No. 175) Chicago, IL and Red Oak, IA, June 22, 2011.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint and compliance specification. The Board found that Respondent Republic Windows and Doors established Respondent Echo Window and Doors as a disguised continuance of its business so that it could evade its obligations under the National Labor Relations Act, and ordered the Respondent to pay a total amount of $1,549,641.05 in backpay and benefits to employees and membership dues and initiation fees to the Union. The Board also ordered the Respondent to give the Union information it requested; if requested, process a grievance filed by the Union; bargain with the Union over the effects of its decision to close its business; and, if it reopens its business, offer the employees their former jobs.
Charge filed by United Electrical, Radio and Machine Workers of America, Local 1110. Chairman Liebman and Members Becker and Pearce participated.
Long Island Reelty Group of L.I., Inc. (29-CA-26436 et al.; 356 NLRB No. 176) Hempstead and Old Westbury, NY, June 23, 2011.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the compliance specification. The Board found that Respondents Long Island Reelty Group of L.I., Inc., 15–35 Hempstead Properties, LLC d/b/a Hemptsead Properties, LLC and Hempstead Properties, LIC; 15–35 Elk Street, L.I.C. Corp.; Jackson Street, Inc.; and Jackson 299 Hempstead, LLC are alter egos and constitute a single-integrated business enterprise and a single employer, and that they are all liable for the amounts due the discriminatees under the Board’s Order. The Board also found that Respondents Steven Kates and Angelina Miller Kates are alter egos of the corporate Respondents and are personally liable with the corporate Respondents for the amounts due to the discriminatees. Finally, the Board ordered the Respondents to pay a total amount of $62,365.00 in backpay to the employees.
Charges filed by Local 808, International Brotherhood of Teamsters. Chairman Liebman and Members Becker and Pearce participated.
Decisions of Administrative Law Judges
Republic Services, Inc. (25-CA-031683; JD-34-11) Argos, IN. Charge filed by International Union of Operating Engineers, Local 150, AFL-CIO, a/w International Union of Operating Engineers, AFL-CIO. Administrative Law Judge Arthur J. Amchan issued his decision on June 21, 2011.
Marquez Brothers Enterprises Inc. (21-CA-39581 et al.; JD(SF)-17-11) City of Industry, CA. Charges filed by individuals. Administrative Law Judge William G. Kocol issued his decision on June 22, 2011.
ABC Pest Control of Houston, Inc., d/b/a ABC Lawn & Pest Control (16-CA-27505; JD(ATL)-18-11) Houston, TX. Charge filed by individuals. Administrative Law Judge George Carson II issued his decision on June 23, 2011.
Human Services Projects, Inc. d/b/a Teen Triumph (32-CA-25262; JD(SF)-15-11) Stockton, CA. Charge filed by an individual. Administrative Law Judge Jay R. Pollack issued his decision on June 23, 2011.
Appellate Court Decisions
Northeastern Land Services, Ltd. d/b/a The NLS Group (1-CA-39447 & 355 NLRB No. 169) June 22, 2011
In a published opinion, the First Circuit enforced the Board's order in full, reinstating its 2009 opinion enforcing the two-member Board's decision.
The Court had enforced the two member Board's order, but the Supreme Court vacated the Court's decision following New Process. After the Board issued a new decision last September, the parties filed new briefs with the Court, which ultimately decided the case without oral argument. As the Court stated, with the exception of the New Process issues and an issue that was jurisdictionally barred, "[t]he arguments by each side largely replicate the merits based arguments presented in the first round of this case." Thus, "[a]s there has been no intervening controlling authority or even persuasive authority provided to us, this panel reinstates . . . the merits portion of our prior decision, with the matters overruled by New Process Steel excerpted, and grants the Board's application for enforcement of its 2010 order."
On the merits, the Court agreed with the Board that the Employer's confidentiality rule, which provides that "[d]isclosure of these terms [of employment] to other parties may constitute grounds for dismissal," was unlawfully overbroad because its "language could be fairly read to extend to disclosure of terms of employment to union representatives" and "[t]he precise subject matter of the forbidden disclosure--terms of employment, including compensation--went to a prime area of concern under [S]ection 7." The Court also concluded that "[t]he Board did not err in not considering that [the discharged employee] would have been discharged in the absence of a violation of the confidentiality provision [pursuant to Wright Line].” As the Court noted, “[t]he Board supportably relied on its own precedents to determine that any discharge[, as here,] pursuant to an unlawful rule is itself unlawful."
Spurlino Materials, LLC (25-CA-30053 & 355 NLRB No. 77) June 23, 2011
The Seventh Circuit denied the Company's petition for review and enforced the Board's order in full.
In 2005, truckers at the Company, a construction contractor, successfully unionized. The three most active and vocal supporters immediately faced repercussions, as did the unit as a whole when the Company unilaterally changed numerous conditions of employment. Specifically, the Board found that the Company discriminatorily failed to dispatch the three supporters to a new job (the "stadium" project) in accord with their seniority; created new driving positions and an eligibility test to work at the stadium project without bargaining; discriminatorily failed to select the three activists for those new driving positions, despite their qualifications and the selectees' lack thereof; terminated one of the three union supporters after violating his Weingarten rights; and unlawfully subcontracted warehouse work to individuals outside the unit without bargaining. After reviewing the record, the Court concluded that, because "Spurlino's petition consists mainly of a reprise of factual arguments that did not persuade the Board, . . . [c]onsistent with the deferential standard of review accorded the Board's ruling, we grant the application for enforcement."
St. George Warehouse (22-CA-23223 & 355 NLRB No. 81) June 23, 2011
The Third Circuit enforced the Board's backpay order in full.
The Court agreed that the General Counsel produced sufficient evidence of the discriminatees' reasonable mitigation efforts to shift the burden of proof back to the Employer, who then failed to prove otherwise. In the course of enforcing backpay for the two discriminatees, the Court endorsed the following principles: (a) Registration with a state unemployment agency "reflects favorably on . . . efforts to mitigate"; (b) It was reasonable for the discriminatee to limit his job search to opportunities within the same geographic area and commuting distance as his prior employment; and (c) The Court will not "view certain periods of [job search] inactivity in a vacuum rather than scrutinize [the discriminatee's] efforts holistically." Moreover, in light of one of the discriminatee's deaths in the years since his termination, the Court approved the Board's reliance on his mother's testimony about his job search efforts, given the case's length of time, the Board's change in burdens of proof and production in an earlier decision in this case, and the Act's command to use the Federal Rules of Civil Procedure only "so far as practicable." Thus, with substantial evidence supporting the Board's finding that the Employer failed to show that either discriminatee did not mitigate his damages, the Court enforced the two awards.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Newark Extended Care Facility (22-RC-013203) June 21, 2011. Decision and order remanding to Regional Director for further appropriate action.
DPI Securprint, Inc. (03-RC-12019) June 22, 2011. Order granting request for review.
Capstone Contracting, LLC (18-CA-19357) June 20, 2011. Order approving the withdrawal of the charge in this case. The petition to revoke subpoena duces tecum B-621964 is therefore moot.
The Boeing Company (19-CA-32431) June 20, 2011. Order granting and denying the appeal in part.
Southern New England Erectors Corp. (01-CA-046418) June 22, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before July 6, 2011.
El Paso Healthcare System, Ltd., d/b/a Las Palmas Medical Center (28-CA-23368) June 23, 2011. Order denying motion for partial summary judgment.
Deco-Akal JV, Inc., et al. (28-CA-21082 et al.) June 23, 2011. Order granting motion to withdraw charges.
Somerset Valley Rehabilitation and Nursing Center (22-CA-29599 et al.) June 23, 2011. Order denying Respondent’s special permission to appeal Administrative Law Judge’s ruling denying Respondent’s petition to partially revoke the Acting General Counsel’s subpoena duces tecum.
Somerset Valley Rehabilitation and Nursing Center (22-CA-29599 et al.) June 23, 2011. Order denying Respondent’s special permission to appeal Administrative Law Judge’s ruling denying Respondent’s petition to partially revoke the Union’s subpoena duces tecum.
Brown & Root Power and Manufacturing, Inc. (15-CA-12752 et al.) June 23, 2011. Supplemental Order.
The McBurney Corporation (26-CA-17564 et al.) June 23, 2011. Supplemental Order.
SEIU United Healthcare Workers – West (Kaiser Permanente) (32-CB-07081) June 24, 2011. Order denying petition to revoke subpoena.
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