Summary of NLRB Decisions for the Week of May 23-27, 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
Public Service Company of New Mexico (28-CA-23148; 356 NLRB No. 160) Albuquerque, NM, May 24, 2011.
The Board adopted the judge’s findings that the Respondent violated Sections 8(a)(5) and (1) by delaying in providing information requested by the Union regarding disciplinary actions taken against non-bargaining-unit personnel for violation of policies and state statutes and regulations applicable to all employees where the union met its burden to demonstrate that the information requested was relevant to its representative function.
Charge filed by International Brotherhood of Electrical Workers, Local Union No. 611, AFL-CIO. Administrative Law Judge Burton Litvack issued his decision on March 2, 2011. Chairman Liebman and Members Pearce and Hayes participated.
Machinists, District Lodge 160, Local Lodge 289 (SSA Marine) (19-CD-00502; 356 NLRB No. 161) Seattle, WA, May 24, 2011.
In this jurisdictional dispute between the International Longshore and Warehouse Union and the International Association of Machinists and Aerospace Workers District Lodge 160, Local Lodge 289, the Board granted the Regional Director’s Motion to Vacate the Board’s earlier Decision and Determination of Dispute. The Board then remanded the case to the Regional Director for Region 19 for further appropriate action.
Chairman Liebman and Members Becker and Pearce participated.
Sutter West Bay Hospitals d/b/a California Pacific Medical Center, a Sutter Health Affiliate (20-CA-34705 et al.; 356 NLRB No. 159) San Francisco, CA, May 25, 2011.
The Board adopted the administrative law judge’s dismissal of the complaint alleging that the employer made unlawful unilateral changes. The judge found that the employer and the union reached an overall good-faith bargaining impasse in their negotiations for a new contract, and that the employer’s subsequent unilateral implementation of a new health plan, pension plan and wage rates was not in violation of Section 8(a)(5) of the Act. The Board highlighted particular evidence concerning the lawful impasse and the absence of fait accompli therein.
Chairman Liebman and Members Pearce and Hayes participated.
Sheet Metal Workers International Association, Local 15, AFL-CIO and Galencare, Inc., d/b/a Brandon Regional Medical Center and Energy Air, Inc. (12-CC-01258 et al.; 356 NLRB No. 162) Tampa, FL, May 26, 2011.
In this secondary boycott case, the Board majority found that the Union did not violate Section 8(b)(4)(ii)(B) by displaying a large inflatable rat on public property in front of a hospital to protest its hiring of nonunion contractors. The majority also found that the act of a union member standing at a hospital entrance displaying a leaflet with two outstretched arms was not unlawful. The Union had a primary labor dispute with the two contracting companies over the alleged payment of substandard wages and benefits below. Applying its reasoning in Carpenters Local 1506 (Eliason & Knuth), 355 NLRB No. 159 (2010), the Board reversed the administrative law judge and found that the rat display and leaflet display by the union member was not picketing and so was not coercive and unlawful. Finally, the Board found that because the rat and leaflet display was similar to other “expressive activity” that the Supreme Court has held is protected by the First Amendment, serious constitutional questions would be raised if the Union’s conduct here was found unlawful.
Relying on his dissenting opinion in Eliason, Member Hayes stated that he would affirm the judge’s finding that the rat display and the leaflet display by the union member were unlawful because both actions constituted picketing. Member Hayes found that the rat display was “tantamount to picketing”, and because the First Amendment does not protect secondary picketing, Member Hayes found no constitutional barrier in finding a violation.
Charges were filed by the Sheet Metal Workers Local 15. Administrative Law Judge George Carson II issued his decision on December 7, 2004. Chairman Liebman and Members Becker, Pearce, and Hayes participated.
Dickens, Inc. and Wenquing Lin (29-CA-29080 et al.; 356 NLRB No. 165) Commack, NY, May 26, 2011.
On June 10, 2010, the Board found that the employer, by its owner, violated the Act by falsely accusing an employee of theft and by calling the police in order to harass him because he had prevailed in a prior unfair labor practice proceeding against the employer. Dickens, Inc., 355 NLRB No. 44. The Board remanded to the judge the allegation as to whether the employer had also violated the Act by laying off two employees because one had prevailed in the prior proceeding and the other had cooperated with the Region in its investigation of the prior case. The Board instructed the judge to further assess the evidence and determine whether the employer had relied on the employees’ lack of fluency in English in selecting them for layoff. The judge subsequently issued a supplemental decision, finding that the employer had not established that it had relied on the employees’ language skills in laying them off. The judge therefore reaffirmed his prior finding and found that the employer had violated the Act by laying off the two employees. The Board agreed with the judge and has found the additional violations.
Charges were filed by one of the employees. Administrative Law Judge Raymond P. Green issued his supplemental decision on July 16, 2010. Chairman Liebman and Members Pearce and Hayes participated.
International Union, United Automobile, Aerospace & Agricultural Implement Workers of America Local Union 3 376 (Colt’s Manufacturing Company, Inc., et al.) (34-CB-02631 et al.; 356 NLRB No. 164) Hartford, CT, May 27, 2011.
Under their Beck procedures, Unions required that potential objectors renew their objections on an annual basis. Each objector received at least four notices of the requirement over the course of a year and objections could be filed at any time, rather than during a limited window period. The Board (Member Hayes dissenting) reversed the judge and found that the Unions did not breach their duty of fair representation because the burden imposed by these procedures was minimal. Dissenting, Member Hayes would find the procedures to have a substantial, coercive, and arbitrary burden on Beck objectors. He additionally found that the annual renewal policy was discriminatory because it only applied to those employees who declared their opposition to compulsory payment of union dues, not those who supported the Unions.
Charges filed by George H. Gally and Solo J. Dowuona-Hammond. Administrative Law Judge Joel P. Biblowitz issued his decision on March 2, 2008. Chairman Liebman and Members Pearce and Hayes participated.
Garner/Morrison, LLC (28-CA-21311 et al.; 356 NLRB No. 163) Tempe, AZ, May 27, 2011.
The Board found that the Employer unlawfully surveilled its employees while the Carpenters Union solicited them to sign authorization cards, that such coercion tainted the showing of majority support for the Carpenters Union, and that the Employer’s recognition of the Carpenters Union as the employees’ exclusive 9(a) bargaining representative in 2007 was hence unlawful. The Board rejected the Employer and Union’s defense that several collective-bargaining agreements established that they had a longstanding 9(a) relationship that predated the 2007 surveillance and recognition. The Board explained that those agreements required the Carpenters Union to relinquish its representation of the employees when, in 2004, the Employer signed a collective-bargaining agreement with the Painters Union and assigned the relevant work to members of that union.
Charges were filed by the International Union of Painters and Allied Trades, District 15, Local 86, AFL-CIO-CLC. Administrative Law Judge James M. Kennedy issued his decision on December 21, 2007. Chairman Liebman and Members Becker and Pearce participated.
Decisions of Administrative Law Judges
American Medical Response of Connecticut, Inc. (34-CA-12592 et al.; JD(NY)-15-11) Avon, Southington, and Waterbury, CT. Charges filed by National Emergency Medical Services Association. Administrative Law Judge Raymond P. Green issued his decision on May 23, 2011.
Tricont Trucking Company (04-CA-37628 et al.; JD(NY)-14-11) Eddystone, PA. Charges filed by Teamsters Local Union No. 107, a/w International Brotherhood of Teamsters. Administrative Law Judge Joel P. Biblowitz issued his decision on May 23, 2011.
RW Briscoe and Associates, Inc. (13-CA-45866; JD-32-11) Algonquin, IL. Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on May 25, 2011.
AK Steel Corporation (06-CA-36963 et al.; JD-33-11) Butler, PA. Charges filed by United Auto Workers Local 3303 a/w United Automobile, Aerospace, Agricultural and Implement Workers of America. Administrative Law Judge Eric M. Fine issued his decision on May 27, 2011.
Berkshire Farm Center and Services for Youth (3-CA-27701; JD(ATL)-15-11) Canaan, NY. Charge filed by Service Employees International Union, Local 200 United. Administrative Law Judge Robert A. Ringler issued his decision on May 27, 2011.
Appellate Court Decisions
Roadway Express, Inc. v. NLRB (12-CA-22202 & 355 NLRB No. 23) May 27, 2011
In an unpublished opinion, the Eleventh Circuit denied Roadway's petition for review and enforced the Board's order, finding that Roadway unlawfully discharged an employee, and that the Teamsters violated its duty of fair representation (DFR) in processing the employee’s grievance.
First, the Court rejected Roadway's argument that Roadway's victory in an earlier Eleventh Circuit case, which arose out of the same facts but was brought as a hybrid suit under Section 301, precluded the Board from pursuing Unfair Labor Practice (ULP) charges. Agreeing with the Board, the Court held that the prior litigation did not constrain the Board here because: (a) the Act invested the General Counsel with independent authority to bring complaints; (b) Section 10(a) of the Act states that other means of adjustment do not affect the Board's power to adjudicate ULPs; and (c) "the NLRB's interest is in protecting the workforce as a whole by pursuing remedies that will deter future unfair labor practices," and "[w]hether those remedies would fully redress [the employee’s] individual injuries is irrelevant in [the NLRB's] case."
Second, moving to the merits, the Court agreed that substantial evidence supported the Board's findings that the Union violated its duty of fair representation in representing the employee, and that Roadway violated Section 8(a)(1) by discharging him. As to the DFR, the Court upheld the Board's finding that the Union's business agent--with whom the employee had a history of internal union conflict--acted in bad faith by failing to disclose exculpatory information that would have aided the employee, and purposefully persuaded the arbitration committee that the employee, acting as union steward, knowingly helped a coworker file a false injury claim. Then, applying NLRB v. Burnup & Sims, 379 U.S. 21 (1964), the Court explained that Roadway unlawfully discharged the employee because, even though it had a good-faith belief that he had engaged in misconduct, that belief was mistaken and Roadway had therefore in fact discharged him merely for engaging in protected union-steward activities.
Trump Marina Associates, LLC v. NLRB (4-CA-36528 & 355 NLRB No. 107) May 27, 2011
In an unpublished opinion, the District of Columbia Circuit enforced the Board's order in full. The Board had found that Trump unlawfully maintained a rule prohibiting employees from speaking to the media without prior approval, and then unlawfully interrogated an employee who spoke to the media after an ALJ ruled in his favor in a prior case. The Court held that the Board's conclusion that Trump's rule interfered with employees' Section 7 rights to speak to the media was "reasonably defensible" and "supported by substantial evidence," and that substantial evidence supported the interrogation finding as well.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
BCI Coca-Cola Bottling Company of Los Angeles, Coca-Cola Refreshments USA, Inc., San Leandro Facility (32-RD-01605) May 24, 2011. Order denying request for review.
Wellington Industries (07-RD-03677) May 24, 2011. Order denying request for review.
Alliance Entertainment, LLC (09-UD-00360) May 25, 2011. Decision and certification of results of election.
Banner Service Corporation (13-RC-21983) May 25, 2011. Decision and certification of results of election.
Home Market Foods, Inc. (01-RC-22496) May 25, 2011. Order denying request for review.
Spray-On Fireproofing, Inc. (10-CA-38602) May 25, 2011. Order adopting Respondent to take action.
New York State Nurses Association (03-CA-27723) May 26, 2011. Order granting motion to remand to Regional Director.
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